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2009 RDR 89 CAUSE NO. P920/09 In The District Court of Mapou In the matter of: Police v/s Jean Harel Philippe Ruling

Applicant is provisionally charged with the offence of Demanding Money by Threat in breach of sections 330 of the Criminal Code Act. He has moved through his learned Counsel to be released on bail while police is objecting to the motion on the following grounds:1. The applicant has committed a breach of his conditions of bail. 2. The applicant is likely to interfere with witnesses. PS Rugoonundun gave evidence in Court which is to the following effect:-

On 16 July 2009 at 15.30 hours, the complainant called at the place of the applicant at the latters request. Following a conversation in relation to the sale of a vehicle, the applicant assaulted him and asked him to withdraw the sum of Rs.90,000 from his bank account. Thereafter, upon the instructions of the applicant, 3 persons forced him to enter into a car and proceeded to MCB Grand Bay for money transfer. Whilst the bank officer was checking his account, he contacted the police for assistance. He further noticed that the sum of Rs. 2100 was missing from his wallet. Applicant was arrested on 17 July 2009 and the provisional plaint was lodged on 20 July 2009 before this court. Ground 2 was based on the fact that the applicant may interfere with witnesses involved in the present enquiry in relation to him. The said enquiry is still at its initial stage and he has a clean record.

In the course of cross-examination, he related the following in court:The applicant has breached his condition of bail by not reporting on one day which was not covered by his medical certificate and thus, leaving the police with the apprehension that he may breach his condition of bail again. He denied the charge against him.

Applicant deponed to say that when he was arrested by the police he gave his correct name and address. He stated that he will abide to whatever conditions imposed upon him in the event he is granted bail. He further stated that he was prepared to remain very far from the witnesses concerned in the present case. He added that he did not own a passport and that he will not abscond. He pointed out that he was previously on bail and reported each time he was needed to court. In cross-examination, he conceded that he had to comply strictly with his conditions of release but failed to do so given that he was ill and had a medical certificate to substantiate that fact.

I have given due consideration to all the evidence put forward before me including the submission of learned Counsel. Before adjudicating on the facts, I propose to consider the matter in the right legal background. Indeed the Privy Council cases of Hurnam v The State [2005] UKPC 49 and The State v Khoyratty (2006) have clarified matters as regards the right to bail as per the Bail Act which has to be assessed on a Constitutional plane namely the right to liberty. Chapter II of our Constitution reflects the values of, and is in part derived from the European Convention on Human Rights, as stated in Neeyamuthkan v The D.P.P. and another [1999 SCJ 284a];Deelchand v Director of Public Prosecutions [2005 SCJ 215]. At this stage, I find it significant to quote an extract from the Hurnam case which reads as follows:It is indeed noteworthy that the European Convention was extended to Mauritius while it was still a Crown Colony before it became independent under 1968 Constitution: see European Commission of Human Rights, Documents and Decisions (1955-1957), at 47. Thus, the rights guaranteed to the people of Mauritius under the European Convention were rights which, on independence, have existed and will continue to exist within the terms of section 3. This is a matter of some significance: while Mauritius is no longer a party to the European Convention or bound by its terms, the Strasbourg jurisprudence gives persuasive guidance on the content of the rights which the people have enjoyed and should continue to enjoy. However the Privy Council case of Khoyratty has clarified that issue in the sense that when Mauritius was given the assent of the Republic status as explained in Hansard, it was meant to reinforce and making it quasi impossible to amend section 1 of our Constitution which does not only depend on the majority votes of the members of parliament but also of a public referendum. Therefore, it is clear that we have to adopt the rules of construction in accordance with the European Court of Human Rights and Strasbourg jurisprudence when dealing with fundamental rights issues which consecrates the concept of separation of powers among the 3 organs of government namely the judicary, legislature and the executive in the Westminster model Constitution with which we are bestowed. The meaning to be attached to democracy (in section 1 of our Constitution) is a matter for the judiciary to decide in its paramount duty to act as guardian of our Constitution (Vallet v Ramgoolam [1973 MR 29]).

The rationale of the cases of Hurnam and Koyratty is that the concept of separation of powers have also been reinforced in our Westminster style Constitution so that the Bail Act appears to be infelicitously drafted. The cardinal principle is that the rule is to grant the detainee bail no matter how serious the offence is. The exceptions that are provided in the Bail Act are not mandatory prohibitions for the release of an applicant on bail and had it been so, it would have been remorselessly declared null and void by the Supreme Court in view of the concept of separation of powers. Indeed, in the Hurnam case, the law lords referred to the case of Rangasamy v The Director of Public Prosecutions (Record No. 90845, 7 November 2005,unreported) wherein the judges of our Supreme Court were taxed for having left the onus on the detainee to establish that he should be released on bail when that burden rested on the prosecution to deprive him of his liberty. Thus, 1 2 the rule is for the detainee to be released on bail for any criminal offence no matter how serious it could be; The court can only exceptionally refuse bail on the grounds enunciated in the Bail Act so that the present ones are within its ambit. 3 This exceptional measure of withholding bail by the Court is subject to the guidelines laid down by Balancy J in Maloupe v The District Magistrate of Grand Port [2000 MR 264]; JV Labonne v The D.P.P. and The District Magistrate of Black River [2005 SCJ 38]; Deelchand v The D.P.P and Others [2005 SCJ 215] which were endorsed in the Privy Council case of Hurnam( supra). This discretionary exercise will have to be carried out judiciously and with proportionality by assessing whether the imposition of conditions by the court will not realistically reduce the risks of absconding, risks to the administration of justice and risks to society to such an extent that they become negligible having regard to the weight which the presumption of innocence carries in the balance in the right to liberty perspective.

In that judicial discretion the Court can only rely on the guidelines propounded above so that they are in conformity with the European Court of Human Rights and Strasbourg jurisprudence (endorsed in Hurnam(supra)). My understanding is

that by trying to import other considerations in the exercise of that discretion would be tantamount to legislating by the Court (Vallet(supra)).

In that exercise to withhold bail, the Court will have to consider the nature of the evidence, that is, the quality or kind of evidence relied by the prosecution to deny bail and other collateral considerations in relation to the applicant himself, for example, his clean record. Then, a balancing exercise will have to be carried out in relation to the 3 risks so that the Court can decide whether to release the detainee on certain conditions or whether he should be denied bail altogether for the upkeep of the public interest.

In the present case, it is abundantly clear from the nature of the evidence namely the applicants own admission that he failed to comply with his conditions of release so that despite resort was sought by him for a medical certificate, it remained unrebutted that same did not cover one day of his reporting exercise. Further, although he arrogated to the fact that he gave his correct name and address to the police, it was not established that he has a fixed place of abode or a family in Mauritius. Although he has a clean record, it is worthy to note that he has denied the charge and thus, reinforcing the incentive for him to do his utmost best to interfere with witnesses in order to exculpate himself bearing in mind that it remained unchallenged that there are other accomplices.

Therefore, the seriousness of the offence which the applicant is well aware of viz. Demanding money by threat viewed in conjunction with the unrebutted evidence that he breached his condition of release for one day which was not covered by a medical certificate tend to confirm that the applicant in the present case is likely to sustain a custodial sentence in a main case. Therefore, it is clear that he has a purpose to serve by interfering with witnesses or accomplices in order to avoid having corroborative evidence against him and more importantly it has not been established that he has a fixed place of abode or family ties in Mauritius thus, reinforcing his chances of failing to appear before the Court as and when required although he has a clean record.

Therefore, an uncompleted enquiry to date by the police cannot be countenanced at face value as any procrastination on their part warranting the unconditional release forthwith of the detainee. This would go against the intent and spirit of the framers of our Constitution to strike a judicious balance between sections 3 and 5 of the Constitution in view of its countervailing interest to ensure that the course of justice is not thwarted by the applicant taking advantage of that delay to commit further offences or similar offences as explained in Hurnam(supra) and enjoined by the decision of the European Court of Human Rights having similar provisions as in sections 3 and 5. Indeed in Hurnam(supra) the law lords quoted the following by referring to the case of Llijkov v Bulgaria( Application no. 33977/97, 26 July 2001, unreported) para 80 the European Court has realistically recognised that the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. They went on to say that only where the imposition of appropriate conditions cannot effectively eliminate the risks then they would afford good grounds for refusing bail but clear and explicit reasons should be given. At this stage, I propose to strike a balance between the grounds of objection substantiated/ shaken/circumvented by the evidence on record and the trichotomy of risks viz. (a) risk of absconding (b) risk to the administration of justice (c) risk to society, so that whether the said 3 risks can be realistically minimised to an acceptable level by the imposition of conditions which is as follows:-. As regards the risk of absconding, although the applicant has a prohibition order lying against him, the possibility of his facing a custodial sentence is envisaged. The fact that he did fail to comply with his conditions of bail tend to show that his irresistible incentive to abscond when it is a question of exculpating himself by interfering with witnesses in the absence of any fixed place of abode or family ties established in the course of the proceedings in relation to him. The imposition of a reasonably high security coupled with the rigours of daily reporting to the nearest police station of his locality or a change of address would not be an adequate incentive for him to abide to his conditions of release. This is because he is aware of his strong chances of facing a custodial sentence and that he has nothing to lose by breaching his conditions of release which he had done in the past in order to save his skin because of his clean record in order to eliminate corroborative evidence against him. Further, none of his close relatives living under the same roof as him undertook to see to it that he would abide to his conditions of release in the event he is granted bail. Thus, he will have ample opportunity to interfere with witnesses bearing in mind that he did breach his conditions of

release in the past. Any reporting devices or contact number being forwarded to the police, or a change of address will not serve any useful purpose. This is because he will be free for the rest of the day without any police escort, and he will be free to contact people to serve his purpose given that Mauritius is a small country. Therefore, it is clear that the imposition of any condition whatsoever no matter how stringent, the Court cannot minimise the real risk to society which in other words is the risk of absconding to an acceptable level. Likewise, the risk to the administration of justice cannot be reduced to that level for the same real and plausible reason that he has nothing to lose by not appearing before Court in view of his prospective custodial sentence. In the same breath, the risk to society cannot be realistically reduced to the acceptable level because of his compelling propensity to exculpate himself by interfering with witnesses which to all intents and purposes is against public policy (all the above underlining is mine). For the reasons given above, I do not deem it fit to grant the said motion which is accordingly set aside. However, I invite the prosecution authorities to do the needful to have the main case lodged at the earliest. (Mrs. S.D. Bonomally, Ag Senior Magistrate, 30.7.09)