Supreme Court of Mauritius, 26 février 2024, 2024 BRC 54 – Manikion v Police

Original District Court (UPW) CN: 2573/2023 – p.1

Manikion v Police

2024 BRC 54

IN THE BAIL AND REMAND COURT

BRC CN: 4816/23 Original District Court (UPW) CN: 2573/2023

In the matter of:-

Louis Oliver Wendy Manikion Applicant

v.

Police Respondent

RULING

Applicant stands provisionally charged with the offence of murder in breach of sections 216, 217 and 222(1) of the Criminal Code coupled with section 22(2)(a) of the Criminal Procedure Act.

At the bail hearing, Applicant was assisted by Counsel, Mr Toorabally, and the case for Respondent was conducted by Senior State Counsel, Mrs Rampoortab, in the presence of Police Prosecutor. Proceedings were held in English.

Respondent sustained that Applicant should not be admitted to bail because he may abscond and interfere with witnesses.

Section 4(1)(a)(i) of the Bail Act 1999 (Act 32/1999) [“the Bail Act”] provides that the Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to fail to surrender to custody or to appear before a Court as and when required.

Original District Court (UPW) CN: 2573/2023 – p.2

In the case at hand, the enquiry officer, PS 7407 Ramyad, sustained that there is a risk that Applicant may abscond given that he is provisionally charged with a serious offence and the sentence applicable is severe. True it is that section 222(1)(a) of the Criminal Code provides that any person who is convicted of murder shall be sentenced to penal servitude for life or, where the Court is satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence and has entered those circumstances on the record of the proceedings, for a term not exceeding 60 years.

However, the Supreme Court pointed out in Labonne v The D.P.P. and The District Magistrate of Black River [2005 SCJ 38] that the seriousness of the offence is only one of the considerations to be taken into account, and will not by itself provide adequate ground for refusing bail.

In the present matter, the enquiry officer explained that on 25.09.2023 at 04.10hours CPL Kerdally of Eau Coulée police station found one Saviren Manikon (“Manikon”) unconscious with injuries near a bus shelter at Wooton, the SAMU came and Manikon was declared dead, an autopsy was carried out, the cause of death was described as “shock due to multiple injuries”, and four suspects including Applicant were arrested. He further explained that Applicant related to the police that two of his confederates forced Manikon to enter the vehicle driven by him, he was taken to Piton du Millieu where he was assaulted, and thereafter, he was abandoned at Wooton. During cross-examination, he conceded that Applicant stated that he did not hit Manikon, he was not implicated by his confederates, and he did not force Manikon to enter the vehicle but he was driving.

To substantiate the risk of absconding, the enquiry officer produced a PF 15 and a PF 14. Same were marked as Doc X and Doc X1. The documentary evidence shows inter alia that Applicant was fined twice in 2014 and 2015 for breach of condition of release.

Nevertheless, he also conceded that Applicant did not try to abscond at the time of his arrest or during custody, it was not difficult to arrest him, there is a prohibition order against him, he has a fixed place of abode, he is married, he has children, he is a welder, he is the sole breadwinner of the family, and he is of modest means. In the circumstances, the Court finds the risk of absconding weak.

As regards the risk of interference with witnesses, section 4(1)(a)(iii) of the Bail Act provides that a Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

In Deelchand v The Director of Public Prosecutions and others [2005 SCJ 215], it was observed that to satisfy the Court that there is a serious risk of interference with a witness, satisfactory reasons, and evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by applicant.

In the present case, the enquiry officer sustained that Applicant will interfere with the witnesses if released. He explained that the medico-legal report and the Judge’s Order are awaited, and the itemised billing can reveal other persons that Applicant has contacted.

Original District Court (UPW) CN: 2573/2023 – p.3

He admitted that Applicant cannot tamper with the medico-legal report, and the police apprehend that Applicant may have called other persons, it is hypothetical and there is a possibility that he made no calls. He conceded that the police have no evidence that Applicant tried to interfere with anyone and it is only a belief. In that respect, the Court notes that the testimony of the enquiry officer is vague. There is no evidence to establish a serious risk of interfere with a witness. It is apposite to note that the incident is dated 25.09.2023, and up to now, no other suspects have been arrested. Hence, the risk of interference with witnesses is weak.

The rationale of the law of bail at pre-trial stage as explained in Maloupe v District Magistrate of Grand Port i.p.o. Director of Public Prosecutions [2000 SCJ 223] is of relevance. The Supreme Court observed that a person should normally be released on bail if the imposition of the conditions reduces the risk of absconding, risk to the 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; and when the imposition of the conditions is considered to be unlikely to make any of the risks negligible, then bail is to be refused.

In the current circumstances, the Court is of view that the identified risks can be reduced by the imposition of stringent conditions such that they become negligible having regard to the weight which the presumption of innocence would carry in the balance. The imposition of a surety, a recognisance, a curfew order, and the obligation for Applicant to have a fixed place of residence, to seek the permission of the Court before travelling abroad, to report to the police station twice daily and to be permanently equipped with a mobile phone with GPS system activated or a tracking tool/app/device installed would allow the police to monitor his whereabouts, and as such, abate the risk of absconding. The obligation for him not to engage in any communication in connection with the present matter with any person, other than the investigatory authorities or the Court, would deter him from interfering with potential witnesses.

It also transpires from the provisional charge that Applicant is held in custody since 26.09.2023, and there is no indication when he will stand trial.

On the basis of the above, the Court orders that Applicant be released on bail subject to the fulfilment of the following conditions by him:

i. to provide a surety in the sum of Rs.400,000/- by bank cheque; ii. to enter into a recognisance in the sum of Rs.800,000/-; iii. to submit a mobile phone to the relevant police department for either (a) the GPS system to be activated or (b) a tracking tool/app/device to be installed on the said mobile phone by the police, and the said mobile phone is to physically remain with him at all times, be used solely and exclusively for monitoring purposes, the relevant mobile number is to be communicated to one or more police officers nominated for that purpose, to ensure that the said mobile phone is in good working condition and opened for communication at all times;

Original District Court (UPW) CN: 2573/2023 – p.4

iv. to reside at a fixed place of residence indicated by him to the police;

v. to remain at his place of residence daily from 9 pm to 6 am, by virtue of a curfew order hereby imposed upon him, and in case of emergency, to inform the police of same before leaving his place of residence during the said curfew hours; vi. to report to the police station nearest his place of residence twice daily, 7 days a week, once between 6 am and 9 am and once between 4 pm and 7 pm; vii. to inform the police of his daily activities each time he reports to the police station; viii. to surrender his passport, if he has one, to the Passport and Immigration Office; ix. not to leave the country, whether by sea or by air, without the Court’s permission; x. not to engage in any communication with any person, other than the investigatory authorities or the Court, in connection with the case, either in person or by means of any technology or mobile or desktop device or social media platform; and xi. to remain accessible and/or promptly available, should the police request and/or require to see him at any given time for the purposes of the enquiry.

Dr Z Cassamally, Ag. District Magistrate, 26.02.2024