Supreme Court of Mauritius, 9 juillet 2020, 2020 BRC 247 – Police v Abdool Gafoor Fakira

Police v Abdool Gafoor Fakira

2020 BRC 247

IN THE BAIL AND REMAND COURT

Provisional Cause Number 562/2020 (Pamplemousses) BRC Cause Number 2014/20

In the matter of:

Police

v/s

Abdool Gafoor FAKIRA

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING- CULTIVATING CANNABIS PLANTS in breach of Sections 30 (1) (e) (i) and 47(5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Me. N. Sondagur at the bail hearing. The proceedings were held in English for the benefit of the Applicant. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the ground of risk of re- offending.

THE CASE FOR THE PROSECUTION

PS 4342 Helene, 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 ground. The police officer explained that on 16 th March 2020 ADSU officers raided the place of the Applicant situated at Royal Road, Montagne Longue and secured 12 plants suspected to be cannabis plants and he further stated that the value of the drug was Rs 36 000. The police officer stated that the Applicant had denied the charge of ‘dealing’ and explained that since drug dealing was a lucrative business and based on the record of previous convictions of the Applicant, the police believe that the Applicant will indulge anew in the drug business. He also stated that the police enquiry was not completed and that the FSL report was yet to be obtained.

In cross examination the police officer confirmed that the last offence committed by the Applicant dated back to the year 2001 and he confirmed that the Applicant had both a fixed place of abode as well as family ties. The case was then 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 respect all bail conditions imposed by the Court and the case was then closed for the Defence.

Defence Counsel offered no submissions and left matters in the hands of the Court.

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 only ground of objection raised by the prosecuting authorities, there is no doubt that drug dealing being a lucrative business, there is a serious risk of the Applicant being tempted to commit further offences, the more so that the Applicant has weak professional ties being listed as someone of “no calling”. 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 has denied the charge and there is no indication when the formal charge would be lodged. I note that Applicant is borne on record for 3 drug offences last dated in the year 2001 and he was not on bail when he was arrested for the present case. The value of drug involved is Rs 36 000 and the Applicant has been on remand since the month of March this year. I have also taken into account the Applicant’s statement in Court from the dock where he stated that he was prepared to abide by any conditions that the Court may impose. I am of the opinion that there are conditions, even severe ones, which could be imposed at this stage 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 does not outweigh his right to remain at large.

The Applicant is to be granted bail under the Bail Act on the following conditions:

(1) The Applicant is to provide a surety in the sum of Rs 40 000 (cash); (2) The Applicant is to enter a recognizance of Rs 150 000 (own name); (3) The Applicant is to reside at a fixed place of residence, address to be provided to the enquiry officers; (4) The Applicant is to report to the nearest police station once daily between 06 00 hours and 18 00 hours

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 9 th July 2020