Supreme Court of Mauritius, 15 juillet 2020, 2020 BRC 261 – Police v Roy Kevin Pelletier

Police v Roy Kevin Pelletier

2020 BRC 261

IN THE BAIL AND REMAND COURT

Provisional Cause Number 812/20 (Lower Plaines Wilhems)

In the matter of:

Police

v/s

Roy Kevin PELLETIER

RULING

The Applicant stands provisionally charged with the offence of ATTEMPT TO ESCAPE FROM LAWFUL CUSTODY in breach of Section 45 of Interpretation and General Clauses Act coupled with section 61 (3) (a) (5) of the Reform Institution Act. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. The hearing for the Respondent was conducted by Police Prosecutor and the Court 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:

• Risk of re-offending • Risk of absconding

THE CASE FOR THE PROSECUTION

PS 5114 Boodhoo, 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. The police officer went on to explain that on 19 th March 2020 at around 14 00 hours at Beau Bassin Central Prison, the Applicant together with two hundred detainees participated in a mutiny and tried to escape from lawful custody. The police officer explained that with the

intervention of the police the Applicant could not succeed in escaping from prison. The officer further stated that the Applicant has denied the charge but two witnesses have implicated him in this case. The Court was informed that the Applicant was on remand for three cases and based on Doc X on record, the police believe that the Applicant will re-offend if he is granted bail. The main enquiry officer further explained that the Applicant was on remand when he tried to escape and since this is a serious offence carrying a heavy penalty, the police believe that the Applicant will abscond if he is granted bail. The main enquiry officer stated that the enquiry was only short of the FSL and MPI reports to complete the enquiry ad he stated that the reports would be available in three weeks’ time. After the Applicant elected not to cross examine the main enquiry officer, the case was closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and from the dock he stated that he would abide by all bail conditions imposed by the Court should he be granted bail. No defence witness was called and 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

Regarding this ground of objection for bail, being given the seriousness of the offence and the probable custodial sentence to be imposed should Applicant be found guilty, there is no doubt, a serious risk that he may be tempted to abscond. However, this court also has to take into account other factors in deciding whether there is a serious risk of absconding. Indeed, “the severity of the sentence which the defendant would be likely to incur, if convicted, does not in itself justify the inference that he or she would attempt to evade trial if released from detention… other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country… may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” [As per Deelchand v. The State [2005] SCJ 251 citing Neumeister v. Austria (1968) 1 ECHR 91]

I have taken into consideration the fact that Applicant is currently on remand for other cases and I am left in the dark as to whether he has a fixed place of abode and family ties. I have looked at the past conduct of the Applicant based on the reasoning that it would be indicative of what he may be capable of doing. I have also tried to make a reasonable projection of what the Applicant may do or may be tempted to do in the future bearing in mind the developments and circumstances surrounding his case. I have considered the fact that the police enquiry has very much progressed and will be completed as soon the FSL and MPI reports are received, which should be communicated in three weeks. Bearing in mind that the provisional charge is that of “attempt to escape from lawful custody” and I find that in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible. This ground of objection can stand.

RISK OF RE-OFFENDING

Regarding the other ground of objection raised by the prosecuting authorities, there is no doubt bearing in mind the record of previous convictions of the Applicant on record that there is a serious risk of the Applicant being tempted to commit further offences. The more so when one considers that Applicant together with his confederates participated in a mutiny and tried to escape from lawful custody. I take note that under oath the main enquiry officer stated that the Applicant has confessed to the charge and 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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . 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. In the present case, the Applicant is borne on record with a long list of previous convictions. I have borne in mind that although 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 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. I find that this ground of objection can stand.

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.”

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 and after finding that the delay so far in this case is not of an undue nature taking into account the complexity of the police enquiry, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible taking into account the amount of time spent by Applicant on remand so far and to lodge the formal charge against him so that he is tried within a reasonable time as guaranteed by the Constitution (Re: Teeluckchand v District Magistrate of Riviere du Rempart [1989 SCJ 56] and Director of Public Prosecutions v Hurnam [2004 SCJ 153]).

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 15 th July 2020