Supreme Court of Mauritius, 6 mars 2020, 2020 BRC 115 – K Chockalingum v Police

1 K Chockalingum v Police

2020 BRC 115

Provisional Cause Number 280/19 (Lower Plaines Wilhems (Rose-Hill)) BRC Cause Number 838/19 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Kellen Chockalingum v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of murder in breach of sections 215, 216, 217 and 222 (1) of the Criminal Code. He has been on remand since the 07 th February 2019 and his Counsel, Me N Dulloo, has moved that he be admitted to bail. Me Nathire appeared for the Respondent, assisted by PS Vythelingum.

2. Facts and circumstances of the case

On the 13 th September 2018, at 23 30 hours, Mr Kushveer Auckloo, 24 years, was conveyed to Candos Hospital, after he was injured. He was admitted at the ICU and passed away on the 24 th January 2019. On the 25 th January 2019, Dr Chamane, PMO, autopsied the body and the cause of death was found to be septicemia due to head and abdomen injuries.

The enquiry has led to the arrest of four persons, including the Applicant. The latter has denied the charge, although he was incriminated by a co-Accused.

2 Case for Respondent

3. Inspector Ramjeetun, of MCIT, has been deputed by the Commissioner of Police to resist bail in the present case on the following ground:

(i) Risk of absconding

4. In support of the ground of objection, Inspector Ramjeetun stated that the Applicant will be charged with a serious offence before either the IC or the Assizes, where he will face a heavy penalty if found guilty. As such, the Police believe that he will abscond if granted bail, through fear of such penalty. It came out that the latter has a clean record and is not on bail.

5. The enquiry is only short of a DNA report and one month is needed to compile the file and send to the ODPP.

6. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

7. From the dock, the Applicant stated that he would abide to all conditions imposed if granted bail.

The Law

8. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

9. Section 3 of the Bail Act provides that “Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

10. Section 4 (1) of the Bail Act reads as follows:

A court may refuse to release a defendant or detainee on bail where –

3 (a) it is satisfied that there is reasonable ground to believe that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) it is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection;

(ii) in the case of a minor, for his own welfare; or

(iii) for the preservation of public order;

(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

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12 (2).

4 11. Section 4(2) of the Bail Act provides that:

In considering whether or not to refuse bail on any ground mentioned in subsection (1), the Court shall decide the matter by weighing the interests of society against the right of the defendant or detainee to his liberty and the prejudice he is likely to suffer if he is detained in custody, taking into account every consideration which, in its opinion, is relevant, including –

(a) the period for which the defendant or detainee has already been in custody since his arrest;

(b) the nature and gravity of the offence with which the defendant or detainee is or is likely to be charged and the nature and gravity of the penalty which may be imposed on him;

(c) the character, association, means, community ties and antecedents of the defendant or detainee, including any non-compliance with any condition imposed for his release on bail with respect to any other offence; and

(d) the nature of the evidence available with regard to the offence with which the defendant is charged.

12. The rationale as to bail was clearly set out in the authority of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held that :

“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 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 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.”

13. I bear in mind that the right balance has to be struck between the constitutional right of the Applicant to enjoy freedom and the interest of society at large.

14. It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 that “In all countries where human rights are respected, the function of the law of bail is likely to be the same, being to reconcile, as stated in Labonne v The D.P.P (supra, at para 2.2.), “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 reasonably protected against serious risks which might materialise in the event that the detainee is really a criminal which he is suspected to be.”

15. In Islam v The Senior District Magistrate Grand Port District Court [2006] SCJ 282 at para 37, it was held that “Pre-trial bail is not a form of punishment to any individual. It is a form of partial and temporary restriction of his liberty with a view to disabling him against antisocial behavior.” Finding Nature of the evidence

16. It was held in Maloupe v The District Magistrate of Grand Port [2000] SCJ 223] that in an application for bail, the Court should not examine “…the precise evidence available to the police and to conclude as to whether it amounts to a prima facie case… Witnesses in the course of the hearing of an application for bail should only be allowed to depone as to the nature i.e. the kind of evidence available (including external circumstances which have a bearing on its quality…”

17. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that the main EO stated that the Applicant was incriminated by a co-Accused. It will be for the Trial Court, and not this Court, to assess the credibility of that self confessed accomplice, as expounded in the cases of DPP v P Sathebajee 2019 SCJ 8 and S Dookhit v The District Magistrate of Pamplemousses, District Court, Pamplemousses 2011 SCJ 101.

18. For the purposes of the present bail application, on the issue of the evidence available against the Applicant emanating from a self confessed accomplice, it was held in DPP v Marthe 2013 SCJ 386 a that :

“The fact that the evidence against an applicant for bail comes from a self- confessed accomplice does not necessarily mean that it is weak or unreliable. It cannot be overlooked that in drug transactions involving more than one person, some of the best evidence against traffickers can and does come from accomplices. The fact remains that Magistrates and Judges have very often convicted accused parties based on the sole evidence of an accomplice after having given themselves the appropriate warning that accomplice evidence is to be treated with care.”

19. It was further held in Marthe (supra) that:

“Indeed, if an accused has denied the charges pending against him, the Magistrate may take that into consideration. But, the denial of a charge has to be assessed in the light of the strength of the evidence available against the accused by the prosecution. If the evidence of the prosecution is strong, the denial is neither here nor there. If the evidence of the prosecution is so weak as to be almost incapable of sustaining the charge against the accused at the subsequent trial, then the Magistrate may weigh the denial of the accused in the balance before deciding to reject the objection taken by the police.”

20. Based on the above and taking into account that the main EO only stated that the Applicant was incriminated by a co-Accused, without giving details in relation to his participation, if any, in the alleged incident, I find that the nature of the evidence against the Applicant appears to be weak. Analysis of the ground of objection 21. As far as the ground of objection is concerned, that is the risk of absconding, I have considered the personal circumstances of the Applicant. In the case of Neumeister vs Austria (1968) 1 ECHR 91 (27 JUNE 1968) at para 10, the Court had this to say: “When the only (…) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release

7 pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.” In the present case, it came out from the main EO that the Applicant has family ties, is a businessman and has a fixed address (page 29 of the court record refers). There is nothing on record to suggest that the latter has jumped bail in the past, the more so since it was confirmed that he has a clean record. I further find that the seriousness of the offence is only a consideration to be weighed in the balance and not by itself a ground for refusing baiI. (Re: Labonne (JV) vs Director of Public Prosecutions (2005) SCJ 38). Therefore, I find that the very fact that the Applicant might eventually abscond as he is likely to face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The main EO admitted, in cross, that the present ground of objection is based on mere apprehension only (page 29 of the court record refers). As such, the ground of objection raised by the police is based on mere apprehension only, and as such, fails.

22. This Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks identified, so as to render such risks negligible as expounded in the case of Maloupe (Supra). In Deelchand (Supra), it was held that “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.”

23. I find that stringent bail conditions can be imposed on the Applicant to minimise the risks identified by the Police. I therefore set aside the ground of objection and order that the Applicant be admitted to bail on the following conditions:

(i) The Applicant shall furnish a surety of Rs 50,000 in cash;

(ii) The Applicant shall enter into a recognisance of Rs 500,000 (in his own name);

(iii) The Applicant shall report to the nearest police station to his place of abode everyday, once a day, between 06 00 hours and 18 00 hours;

(iv) The Applicant shall reside at a fixed address, which shall be provided to the Police;

(v) The Applicant shall not contact any witnesses involved in the present matter, whether directly or indirectly;

(vi) The Applicant shall inform the Police about his daily movements each time he reports to the Police; and

(vii) The Applicant shall have in his possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that he may be contacted by the police, as and when required.

Miss Shavina Jugnauth District Magistrate This 06 th March 2020