Supreme Court of Mauritius, 20 mai 2020, 2020 BRC 142 – police v Louis Darian Terry Hofftede

police v Louis Darian Terry Hofftede

2020 BRC 142

IN THE BAIL AND REMAND COURT

Provisional Cause Number 157/20 (Moka)

In the matter of:

Police

v/s

Louis Darian Terry Hofftede

RULING

The Applicant stands provisionally charged with the offence of LARCENY in breach of Section 301 (1) of the Criminal Code Act. The Applicant has moved that he be admitted to bail and the proceedings were held in Creole for the benefit of the Applicant who stood inops consilii at the bail hearing.

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) Risk of absconding

The CASE FOR THE PROSECUTION

PS Coodien, the main enquiry officer was called by the Prosecution and he explained that he had been deputed by the Commissioner of the police to resist the present bail application on the above mentioned grounds of objection. He explained

that Applicant had committed 7 cognate offences and that he had confessed to the present charge. The main enquiry officer stated that the value of articles stolen was Rs 12, 000 and that the police has all the reasons to believe that should Applicant be granted bail, he will re-offend and abscond as in the past he has also breached conditions of release. Docs X and X1 were filed and the officer stated that the police enquiry was completed and that the Form 100 was being drafted and that the main case would be lodged soon after the advice of the DPP was received. After the Applicant elected not to cross examine the witness the case was 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 not re-offend and that he will respect all bail conditions.

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 AND ABSCONDING

Regarding both grounds of objection, I find that Applicant has committed 7 cognate offences in the past as listed in Doc X on record and that he has committed breaches of conditions of release. I have also considered the fact that Applicant has confessed to the present case. I am therefore satisfied that the dangers of re- offending and absconding are “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 present case, the Applicant has made a full confession to the charge against him and as confirmed by the main enquiry officer there is real evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGIST RATE 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 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 will respect all bail conditions. I note that the status of Applicant is that of “no calling” and that he has a propensity to commit larceny cases. I further considered the fact that the main enquiry officer has stated has the police enquiry was completed and that the main case will be lodged soon. 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.

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 having carried 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 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 not be lodged against the Applicant on or before 22 nd June 2020, he is to be granted bail on the following conditions:

(1) Applicant is to furnish a surety in the sum of Rs 25 000 (cash); (2) Applicant is to enter a recognizance of Rs 60 000 (own name); (3) Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours. (4) The Applicant should not commit any offence whilst on bail; (5) A curfew order is imposed on Applicant. He is to remain indoors daily between 19 00 hours and 05 00 hours at his residential address and in case there is an emergency warranting him to go out, he must contact the police to inform them of his predicament before proceeding outside during the hours of curfew; (6) Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry officers;

The matter is fixed Pro Forma on 22 nd June 2020 if main case not lodged.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 20 th May 2020