Supreme Court of Mauritius, 13 mars 2020, 2020 BRC 50 – Police v Jamiel Jean Pierre

Police v Jamiel Jean Pierre

2020 BRC 50

IN THE BAIL AND REMAND COURT

Provisional Cause Number 439/19, 440/19 and 441/19 (Black River) BRC Cause Number 1748/19,1749/19 and 1750/19

In the matter of:

Police

v/s

Jamiel JEAN PIERRE

RULING

The Applicant stands provisionally charged with the offence of ATTEMPT AT LARCENY MADE BY MORE THAN TWO INDIVIDUALS WHISLT BEING MASKED AND ARMED WITH OFFENSIVE WEAPON ARCENY WITH VIOLENCE in breach of Section 2 (b) and 45 of the Interpretation and the General Clauses Act and Sections 301 (1), 301 A and 305 (1) (a) (b) of the criminal code in case Provisional Cause Number 439/19 and in cases Provisional Cause Number 440/19 and 441/19 he stands provisionally charged with the offence of LARCENY MADE BY MORE THAN TWO INDIVIDUALS WHILST BEING MASKED AND ARMED WITH OFFENSIVE WEAPON in breach of Sections 301 (1), 301 A and 305 (1) (a) (b) of the Criminal Code. The Applicant has moved that he be admitted to bail in all 3 cases and he stood inops consilii at the bail hearings. The proceedings were held in Creole language for the benefit of the Applicant and it was agreed between the parties that the 3 cases would be heard together and that one Ruling would be delivered, which Ruling would apply in all 3 cases.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of (1) Risk of re-offending and (2) Risk of absconding.

THE CASE FOR THE PROSECUTION

PS Tulsee, 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. In relation to case Provisional Cause Number 439/19 the police officer went on to explain that on 31 st March 2019 the Applicant together with his 3 friends tried to break into a house at Tamarin whilst being masked and in possession of sabres. However, as Declarant saw them and shouted for help, Applicant and his friends ran away. In relation to case Provisional Cause Number 440/19, the main enquiry officer explained that Applicant with 4 friends entered into a house at Rivière Noire and after having threatened the occupants with sabres, the committed the larceny of various articles, jewels and money, all amounting to Rs 1.9 million. In relation to provisional case Cause Number 441/19 the enquiry officer explained that on 31 st March 2019 at night, the Applicant together with his 4 friends entered the place of a foreigner at Rivière Noire, La Preneuse whilst being masked and in possession of sabres and threatened the occupants and stole various articles. The court was informed that Applicant further forced the Declarant to retrieve sums of money from the ATM amounting to Rs 250, 000. The police officer stated that only part of the exhibit was recovered worth Rs 80, 000 and the court was informed that Applicant had confessed to all the charges.

RISK OF RE-OFFENDING

In relation to the above ground of objection, the main enquiry officer explained that based on Doc X on record and the confession of Applicant, the police has all the reasons to believe that if Applicant is granted bail, he will reoffend. The court was informed that the police enquiry had been completed and the files haves been sent to the office of the DPP on 3 rd March 2020. In cross examination the main enquiry officer stated that the Applicant had committed a breach of condition of release and Doc X1 was filed accordingly. 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 had family ties and would comply with all bail conditions imposed by the Court. The case was 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 RE-OFFENDING

Regarding the ground of objection, based on Doc X and X1 on record, there is no doubt that 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 confessed the charges 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 that he is prepared to abide by any conditions that the Court may impose. I note further that Applicant has committed 3 larceny offences which are larceny with aggravating circumstances. I do also note that the main enquiry officer has stated that the police enquiry was over and have already been sent for advice.

RISK OF ABSCONDING

I note that the main enquiry officer did not substantiate the above ground of objection. Therefore, it cannot stand.

The conditions which I have considered regarding the first ground of objection are as follows: 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.

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.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 13 th March 2020