DEELCHAND V v THE DIRECTOR OF PUBLIC PROSECUTIONS AND

OTHERS

2005 SCJ 215

Record No.: 89309

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Vinay Deelchand
Petitioner
v.

1. The Director of Public Prosecutions

2. The District Magistrate, Bail
and Remand Court (His Honour Mr. V. Appadoo)
3. The District Magistrate of Curepipe
(Her Honour Mrs. A. Ramano)
4. The District Magistrate of Port Louis
(Her Honour Mrs. V. Bhadain)
5. The District Magistrate, Bail and Remand Court
(His Honour Mr. A. Neerooa)
Respondents
….

(N.B. In view of the unusual length of the judgment I have had recourse,
exceptionally, to a reader-friendly index.)

INDEX TO JUDGMENT

1. The procedure adopted in this case

2. Comments on relevant procedural aspects in the present case
(a) 0n the making of this application by way of petition.
(b) 0n the annexation of the previous rulings on bail
(c) 0n the procedure for producing written evidence
(d) 0n the propriety of a formal statement of the grounds of objection
and the different procedure for production of evidence in the Supreme
Court, as compared with the lower courts

3. The grounds on which the application is resisted

4. The relevant law
5. The risks invoked in the grounds of objection and how to assess them
(a) The risk of absconding
(b) The risk of offending
(c) The risk of interference with witnesses
6. The risk taken when bail is refused
7. Bail not to be refused if conditions can sufficiently reduce the relevant
risks
8. The risk-reducing conditions which may be contemplated
9. Defects to be avoided in the decision-making process
10. Review of the Magistrates’ rulings
(a) The first ruling of the Bail and Remand Court.
(b) The ruling of the District Court of Curepipe
(c) The second ruling of the Bail and Remand Court (dated 21
September 2004)
(d) The third ruling of the Bail and Remand Court (dated 22
November 2004)

11. The need for, and means by which, the quality of judgments in bail cases
could be improved

12. Applying the relevant principles to the facts of the present case
(a) The facts of the case as established in this application
(i) 0ffences which the petitioner is suspected to have committed
(ii) The offences in respect of which the petitioner has been refused
bail
(iii) The circumstances of the suspected offences
(iv) Particular factors relating to the petitioner
(v) The nature of the evidence available against the petitioner
(vi) Available conditions
(vii) Length of detention up to now and prospect of trial within
a reasonable time

(b) The delicate weighing exercise

(i) Weighing the risk of interference with witness Chetty
(ii) Weighing the risk of absconding
(iii) Weighing the risk of offending
- The temptation to offend
- The consequences if the risk materialises

(c) An overriding consideration: the imminence of the first trial

13. My decision on the present application
 4

IN THE SUPREME COURT OF MAURITIUS

Record No.: 89309

In the matter of:

Vinay Deelchand
Petitioner

v.

1. The Director of Public Prosecutions

2. The District Magistrate, Bail
and Remand Court (His Honour Mr. V. Appadoo)
3. The District Magistrate of Curepipe
(Her Honour Mrs. A. Ramano)
4. The District Magistrate of Port Louis
(Her Honour Mrs. V. Bhadain)
5. The District Magistrate, Bail and Remand Court
(His Honour Mr. A. Neerooa)
Respondents

….

JUDGMENT

1. The procedure adopted in this case

1.1 This is an application for bail made by way of petition supported by a

short affidavit in which the petitioner solemnly affirms the correctness of the contents of

his petition.

1.2 In line with the procedure indicated in Muntroneea v D.P.P. [1983 SCJ

292], the petitioner directed his application to the Judge in Chambers who, having been

satisfied, in the course of the screening process, that the application was not a frivolous

one but deserved to be considered, made the matter returnable before this Court. On 24

May 2005 (the returnable date) the case was called before the Deputy Master and

Registrar. The State Attorney appearing for the first respondent moved for a
 5

postponement to file a counter-affidavit and the other three respondents, who were

represented by a Senior Court 0fficer, indicated that they would abide by the decision of

this Court. The case was then fixed to 2 June 2005 for mention but by a circular dated 1

June 2005 from the Master and Registrar, all the parties were informed that, by order of

the Chief Justice, the case had been fixed for merits to 21 June 2005 and would not be

mentioned on 2 June 2005. It was accordingly on 21 June 2005 when the case was

called before us to be heard, that Counsel for the first respondent produced an affidavit

sworn by Police Inspector J.H.L. Tuyau in which the latter stated that he had been duly

authorised to swear that affidavit, and went on to respond to the applicant’s petition and

affidavit by admitting, taking note of, and denying, respectively, different facts and

conveying the stand of the police. Counsel for the petitioner then produced an affidavit

in reply solemnly affirmed by the petitioner. No other form of evidence was produced

and both Counsel went on to offer submissions.

2. Comments on relevant procedural aspects in the present case

I pause here to make the following remarks:

(a) 0n the making of this application by way of petition.

2.1 In the course of the hearing, I asked Counsel for the applicant, Mr. G.

0llivry, Q.C., why, instead of the normal way of giving written evidence by an affidavit,

the device of putting in a petition converted into evidence by an accompanying affidavit –

a procedure which appeared rather peculiar to me – had been resorted to. He replied

that, according to his instructing attorney, the procedure by way of petition had been

adopted in the case of Muntroneea (supra, at para. 1.2). In fact, the procedure adopted

in that case was that of motion supported by affidavit presented directly to the Court,
 6

hence the dicta to the effect that application should first be made to the Judge in

Chambers who, if satisfied that the application deserved to be heard, would refer the

matter to Court to the earliest available date. The case used as a precedent by the

applicant’s attorney as to the procedure to be followed was probably the case of

Ramjeeawon v D.P.P. [1983 SCJ 342], where the court further explained the procedure

indicated in Muntroneea. Indeed, in that case the applicant, whilst submitting himself to

the screening process operated by the Judge in Chambers, proceeded by way of

petition. But although the court heard the application, the court in no way approved that

form of process and in fact stated that “the proper procedure is to apply to the Judge in

Chambers for a summons to show cause” as indicated in Muntroneea (supra, at para.

1.2). And the latter case clearly contemplated that the “affidavit in support (of the

application to the Judge in Chambers) should recite all the material facts”. Although I

endorse the dictum in Muntroneea (supra, at para 1.2) that this court will not unduly

insist on proper procedure when the liberty of the citizen is at stake, I trust that this

peculiar procedure of proceeding by way of petition converted into evidence by a short

accompanying affidavit will not be adopted again in the future.

(b) 0n the annexation of the previous rulings on bail

2.2 I am referring here to the annexation, to the petition, of the rulings of the

learned Magistrates who, upon different applications, refused bail to the petitioner. As

rightly pointed out in Muntroneea v D.P.P. (supra, at para 1.2) applications to the

Supreme Court for bail following previous refusal of same by Magistrates are not

appeals against the decision of those Magistrates, but in view of the supervisory powers

of this court over lower courts, a reviewing exercise is conducted (as was done,

incidentally, in Maloupe v District Magistrate of Grand Port i.p.o. Director of Public

 7

Prosecutions [2000 SCJ 223], This dual function of the Court was viewed as an area

of ambiguity where clarification was offered in Labonne v D.P.P. and anor [2005 SCJ

38]. As the circumstances relevant to bail are, if only by virtue of the passage of time

itself, often changing, and a person under pre-trial detention has a right to periodic

judicial review of the lawfulness of his detention, this Court normally has, upon an

application of the present kind, to conduct an actual hearing of the bail application whilst

ensuring that any mistaken approach by the lower court is rectified. Counsel for the

petitioner explained that the rulings of the Magistrates have been annexed to the petition

so that this Court, which exercises supervisory jurisdiction over lower Courts, may be

aware of everything which has happened so far in the lower Courts in relation to the

petitioner’s endeavours to be released on bail. As pointed out to Counsel, however,

care must be taken not to rely on evidence, referred to in the rulings, which has not been

adduced in the present case.

(c) 0n the procedure for producing written evidence

2.3 In respect of the procedure at the Supreme Court, I am of the view that

the filing of affidavits on the date of the hearing is not commendable and that all such

filing should be completed at mention stage, thus enabling the Court to monitor the

different stages in the production of evidence and avoiding complaints by a party that he

is being taken by surprise by new matters raised in the affidavit evidence so produced.

(d) 0n the propriety of a formal statement of the

grounds of objection and the different procedure for
production of evidence in the Supreme Court, as compared
with the lower courts

2.4 It appears to me that having regard to the proper administration of justice

a respondent resisting an application for bail should be required to state formally, in

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Court, at mention stage - the equivalent of which is, in legal jargon in the lower courts,

the calling of the case pro forma - his grounds for objecting to the application. This step

in the procedure is of crucial importance in that it provides an opportunity for particulars

of those grounds to be asked, where appropriate, such that the applicant may be in a

better position to prepare his case and adduce relevant evidence having regard to the

precise objections he has to meet. It is to be noted that such evidence will -

(i) in an application before the Supreme Court, be produced by way of

counter affidavit(s) with any accompanying documentary evidence

filed prior to the hearing with the possibility of additional oral

evidence – notably by cross-examination, on the day of the hearing,

of the witness having given such affidavit evidence;

(ii) in an application before the District Court, be produced only at the

hearing of the application.

2.7 I wish to remind Counsel and Attorneys that when the Court is asked to

pronounce itself solely on the basis of affidavit and other documentary evidence – as is

often the case in an application for bail before the Supreme Court - only uncontradicted

facts can normally be acted upon, the Court being unable – except in the rare cases

where unchallenged or unchallengeable documentary evidence allows the court to do so

- to decide disputed issues of fact upon conflicting averments on the part of the parties.

3. The grounds on which the application is resisted

3.1 In the present case, the grounds on which the first respondent is resisting

the application were not formally stated at mention stage, some indication of those

grounds being however given in the affidavit of Inspector Tuyau where he stated that the
 9

police is still objecting to the release on bail of the petitioner on the same grounds on

which such release was objected to before the Magistrates (the second, third and fourth

respondents).

3.2 Upon being requested to make a formal statement in Court of the grounds

on which the first respondent is resisting the present application, and after the court had

felt it necessary to offer some guidance as to what is to be considered as a ground of

objection in an application for bail, Counsel for the first respondent stated the grounds as

follows:

(1) the likelihood of the petitioner absconding, if released on bail;

(2) the likelihood of the petitioner interfering with witnesses and tampering with

evidence if released on bail;

(3) the risk that the petitioner may commit offences similar to those with which

he stands charged.

In the course of his submissions, Counsel reduced the second ground above to

the following: “the likelihood of the petitioner interfering with witness Antoine Chetty”

4. The relevant law

4.1 0ur law of bail pending trial is set out in the Bail Act. 0ur Constitution

merely makes it clear, in section 5(3), that a person who is detained upon suspicion of

having committed a criminal offence may, under our law, not be released, since that

subsection lays down, in fact, the rights of such a person who is not released, including,

inter alia, the right to be released with or without conditions if he is not tried within a

reasonable time. This provision of the Constitution implies, in our view, that -
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0

(1) the Mauritian legislator is free to provide for rules relating to release on

bail, notably grounds on which bail may be refused pending trial, so long

as those rules are consonant with the letter and spirit of our Constitution.

(The Bail Act is the relevant legislation through which this power has been

exercised by the Mauritian Parliament);

(2) However, where a suspect has not been tried within a reasonable time,

he is entitled to be released, albeit on conditions, and no law can be

validly enacted to deny him that right.

4.2 It follows that a suspect who is simply saying that there is no valid reason

why he should be kept in jail pending the determination of the charge with which he

stands suspected should invoke the provisions of the Bail Act in the course of a bail

application. 0n the other hand, a suspect who complains that he has not been tried

within a reasonable time, and is seeking release, albeit on conditions, as a form of

redress should invoke the provisions of section 5(3) of the Constitution in an application

under section 17 of the Constitution. That is not to say, however, that in a bail

application unreasonable delay in conducting the trial of the suspect will not be relevant.

It will, of course, but in such an application the court will be primarily concerned with the

evaluation of risks involved in release, and pre-trial detention, respectively, not with

making a finding that there has been an infringement of the applicant’s right under

section 5(3) of the Constitution resulting in the mandatory release of the applicant, be it

unconditionally or on conditions. In the course of the hearing of an application brought

under section 5(3) of the Constitution facts relevant to a normal bail application may be

taken into consideration, where relevant, in reaching a decision in relation to the

question at issue, as explained in State v Unuth and anor [1996 SCJ 204a]. Similarly,
 1
1
facts relevant to an application under section 5(3) of the Constitution may be relevant in

an application for bail, but a court hearing an application for bail cannot be expected to

pronounce itself on the specific question whether there has been a breach of section

5(3): such a pronouncement would be more appropriately prayed for in an application

under the Constitution.

4.3 These remarks are of special pertinence to the present case, as Counsel

invoked with insistence sect. 5(3) of the Constitution. The application before the Judge

in Chambers, it is to be noted, was labelled, in the praecipe: “Application under the

inherent powers of the Supreme Court and on the authority of Muntroneea v DPP”

(supra, at para 1.2). This clearly indicates that the application invokes the initial

intervention of the Judge in Chambers and the eventual exercise of the inherent powers

of the Supreme Court to grant bail. And the procedure followed is itself a clear indication

that the present application is one for bail made under the Bail Act and not one seeking

mandatory release by way of redress for an infringement of the right provided in sect.

5(3) of the Constitution.

4.4 I therefore have to turn to our law of bail as contained in the Bail Act [Act

No. 32 of 1999], which came into force on 14 February 2000). Section 3 of that Act

provides that, subject to section 4, every defendant or detainee shall be entitled to be

released on bail. Section 4(1) then lists up six categories of circumstances [(a) to (f) ]
the law
where a Judge or a Magistrate “may” refuse to release a defendant or detainee on bail.

(Section 2 – the interpretation section – makes it clear, in that connection, that release

on bail is the release from custody of a person under condition that a recognisance is

entered into by himself alone or by himself and any surety as might be ordered – such
 1
2
that unconditional release on bail, which is a possibility in England, would not be a

conceptual possibility under the present Mauritian legislation).

4.5 For the purposes of the present application, I am only directly concerned

with the first and indeed most important category (sect. 4(1)(a) which 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) he is satisfied that there is reasonable ground for believing

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 not exceeding 1000

rupees

(iii) interfere with witnesses, tamper with evidence or

otherwise obstruct the course of justice, in

relation to him or to any other person.

4.6 The word “may” in the above section indicates that there is still a

discretion to grant bail even where the Judge is satisfied that one of the risks in (i) (ii) or

(iii) above is likely to materialise, but common sense indicates that except where the

imposition of conditions is likely to reduce those risks to an acceptable level, the

circumstances at (i) and (iii) above will certainly provide adequate grounds for refusing
 1
3
bail; and that a similar analysis will apply in relation to (ii) above where an offence

involving serious harm to one or more persons or to society in general, is concerned.

4.7 By contrast, the fourth circumstance equally listed as one where a Judge

or Magistrate “may” refuse to release a defendant or a detainee on bail – “the defendant

or detainee is charged or is likely to be charged with a serious offence” - is not one

which will by itself provide adequate ground for refusing bail, but is only one of the

considerations to be taken into account, as the Court held and fully explained in

Labonne v The D.P.P. and The District Magistrate of Black River (supra, at para 2.2).

4.8 0ur Bail Act indicates, further, in sect. 4(2) that the relevant

considerations to be taken into account will also include “the character and antecedents

of the defendant or detainee” and “the nature of the evidence available with regard to

the offence”. However, our Bail Act falls short of making clear the guiding principle in

granting or refusing bail.

4.9 This is where this court, has stepped in to explain the rationale of bail. 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 the

criminal which he is suspected to be.”

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4.10 Prior to Labonne v The D.P.P. (supra, at para. 9), this Court stepped in to

explain the rationale of bail in Maloupe (supra, at para 2.2) where the following

pronouncement was made:

“The wording of section 4(1) of the Bail Act 1999 makes it clear that release on

bail at pre-trial 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 he is

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 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.”

4.11 It stands to reason that the decision-making process in relation to bail will

call for a balancing exercise where all relevant facts have to be given due weight in the

balance either in favour of release on bail (where they tend to reduce the likelihood of

one of the relevant risks materialising) or in favour of refusal of bail (where they tend to

increase the likelihood of one of the relevant risks materialising).

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5

4.12 In particular, the “nature of the offence and the penalty applicable thereto”

(sect. 4(a) Bail Act) and “the seriousness of the offence charged or likely to be charged”

(sect. 4(1)(d) Bail Act) should not be viewed in isolation, but in conjunction with any

relevant risk.

4.13 The nature of the evidence is, likewise, to be related to the risk under

consideration where, having regard to its type and to factors affecting its quality [without

going into the details of the evidence as explained in Maloupe (supra, at para 2.2) and

Labonne (supra, at para 2.2) ] it is either so patently strong or weak as to have a bearing

on that risk.

4.14 It is interesting to note that the jurisprudence of the European Court of

Human Rights reflects a similar approach to that adopted in Maloupe (supra, para 2.2)

and Labonne (supra, para. 2.2). It is appropriate for me to point out that, as –

(1) Chapter II of our Constitution entitled “Protection of

Fundamental rights and freedoms of the individual”

substantially reflects the values enshrined in the

European convention of human rights; and

(2) as highlighted in Neeyamuthkhan v The Director of

Public Prosecutions and anor [1999 SCJ 284a]

there is striking similarity between section 5(3) of our

Constitution and Article 5(3) of the European

Convention on Human Rights which both provide for

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compulsory release, albeit on conditions, where trial

does not take place within a reasonable time,

appropriate guidance can be sought from the decisions of the European Court of

Human rights in relation to pre-trial detention in countries with legislation

comparable to ours. (The references in this judgment relate to the Internet Site

http://www.worldlii.org/eu/cases/ECHR which contains the judgments of that

Court from 1960 to 2004 and has been very useful to me, especially as the

collection at the Supreme Court Library only starts with 1997 with a number of

periodical issues missing).

5. The risks invoked in the grounds of objection and how to assess them

5.1 I shall now refer to each of the three risks invoked by the first respondent

(the D.P.P.) and indicate, from a purely legal point of view how relevant considerations

should be linked to those risks.

(a) The risk of absconding

5.2 The risk of absconding has to be assessed with regard to several relevant

factors. Although, as stated in the last passage quoted, the seriousness of the offence

may, by itself or in conjunction with some other factor such as the defendant’s criminal

record, give a basis for believing that the defendant will fail to surrender through fear of a

custodial sentence, this factor must be viewed in conjunction with other factors which

may well indicate that the defendant is unlikely to abscond.

5.3 In Neumeister v Austria (1968) 1 ECHR 91 (27 June 1968) at para 10,

the European Court of Human Rights ruled that the severity of the sentence which the
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7
defendant would be likely to incur, if convicted, does not in itself justify the inference that

he or she would attempt to evade trial if released from detention:

“The danger of flight cannot … be evaluated solely on the basis of such

consideration..

0ther factors, especially those relating to the character of the person

involved, his morals, his home, his occupation, his assets, his family ties

and all kinds of links with the country in which he is being prosecuted may

either confirm the existence of a danger of flight or make it appear so

small that it cannot justify detention pending trial.”

5.4 Considerations relevant to the risk of absconding will include the strength,

weakness or absence of family, community, professional or occupational ties and

financial commitments as such ties, if strong, might be strong incentives not to abscond

and, if weak might increase the risk of absconding. The strength of the evidence may

also be relevant because if it is likely that the charge will not be proved, the defendant

may be less likely to abscond. The court must ask itself: what would be likely to

motivate the applicant to abscond and what would be likely to make him refrain from

absconding? Is the risk too great to be taken or is the level of risk acceptable, such that

it can be taken having regard to the presumption of innocence? Can the risk at least be

reduced to an acceptable level by the imposition of conditions?

In Wemhoff v Germany [1968] ECHR 2 at para. 15, The European Court of

Human Rights emphasised that –

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“When the only (…) reason for continued detention is the fear that the accused

will abscond and thereby subsequently avoid appearing for trial, his release

pending trial must be ordered if it is possible to obtain from him guarantees that

will ensure such appearance.”

(b) The risk of offending

5.5 The precise wording used in section 4(1)(a)(ii) of the Bail Act to establish

the risk of offending as a ground for refusing bail is that the suspect is likely to commit an

offence other than an offence punishable only by a fine not exceeding 1000 rupees. In

practice, the ground of risk of offending is only likely to be invoked where the offence

feared is quite serious and punishable by a custodial sentence.

5.6 It goes without saying that the risk of offending must be a real one, and

that there must be adequate reasons to explain its existence. In Clooth v Belgium [1991]

ECHR 71 (12 December 1991), at para 40, the Court said that the “danger” of a serious

offence being committed by the applicant whilst on bail should be “a plausible one”.

5.7 Several factors may be relevant in the assessment of the seriousness of

the risk and the propriety of detention to avert the danger. The criminal record of the

applicant is an important consideration. So, too, the nature of the offence or offences

which the applicant is suspected to have committed as some offences are more likely to

be repeated than others. There may be ground for fearing, for example, that one or

more murders or rapes with which the applicant stands charged, are part of serial killing

or serial raping by a psychopath. 0n the other hand a “crime de passion” may be

unlikely to be repeated.
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5.8 The sentence expected in case of conviction is also a relevant

consideration because of the greater risk that the offender may think he has nothing to

lose by offending whilst on bail. The extent to which the offences which the applicant is

suspected to have committed are lucrative should also be considered as the temptation,

in case the applicant is guilty, that he may wish to make as much money as possible

whilst on bail, is likely to be greater.

5.9 As between the offence charged and the offence feared, it seems to

methat there is no reason why they should necessarily be similar, so long as there is an

appropriate connection between them. Circumstances including the past history and the

personality of the person charged may also be such as to diminish the risk of offending.

5.10 The likely consequences of re-offending are important too. As pointed

out in Matznetter v Austria (supra, at para …): “A judge may reasonably take into

account the seriousness of the consequences of criminal offences when there is a

question of taking into account the danger of seeing such offences being repeated, in

order to decide if the person concerned can be released in spite of the existence of such

danger.”

5.11 The character of the applicant, notably a clean or criminal record, is also

a relevant consideration in considering the risk of offending (as it may indicate an

inclination which increases that risk). So too the nature of the evidence against him: if

he happens to be a criminal, then -

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0

if the evidence against him appears strong, he is more likely to think he has nothing to

lose by re-offending;

if the evidence appears weak to him, he will be less likely to take the risk of detection

upon re-offending.

(c) The risk of interference with witnesses

5.12 It would be preposterous to hold the view that in each and every

application for bail, it would suffice that an enquiring officer should express his fear that

the applicant would interfere with one or more witnesses for the accused to be denied

bail on that ground. To satisfy the court that there is a serious risk of interference with a

witness, satisfactory reasons, and appropriate evidence in connection thereof where

appropriate, should be given to establish the probability of interference with that witness

by the applicant. In his book “Bail in Criminal Proceedings” (1990), Neil Corre, writing

from sound practical experience, points out that the risk that the applicant may “interfere

with witnesses or otherwise obstruct the course of justice” is “an important exception to

the right to bail because any system of justice must depend upon witnesses being free of

fear of intimidation or bribery and upon evidence being properly obtained”. He then goes

on to point out:

“The exception’s most common manifestations are in cases where:

(a) the defendant has allegedly threatened witnesses;

(b) the defendant has allegedly made admissions that he intends to do so;

(c) the witnesses have a close relationship with the defendant, for example in

cases of domestic violence or incest;

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(d) the witnesses are especially vulnerable, for example where they live near

the defendant or are children or elderly people;

(e) it is believed that the defendant knows the location of inculpatory

documentary evidence which he may destroy, or has hidden stolen property

or the proceeds of crime;

(f) it is believed the defendant will intimidate or bribe jurors;

(g) other suspects are still at large and may be warned by the defendant

The exception does not apply simply because there are further police enquiries

or merely because there are suspects who have yet to be apprehended” (the

underlining is mine).

Finally the court should consider whether the risk can be averted or reduced to

an acceptable level by the imposition of conditions.

6. The risk taken when bail is refused

In carrying the balance of risks, the Court must of course also bear in mind the

risk of prejudice to the accused and his next of kin if he is not granted bail, namely the

risk, in the event he is acquitted, that an innocent person would have been unjustly

detained and suffered prejudice along with his next of kin. That risk is greater and not

worth taking when the quality of the evidence is particularly poor whilst it can be more

readily taken when the evidence is particularly strong in view of its nature.
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7. Bail not to be refused if conditions can sufficiently reduce the relevant
risks

It follows from the rationale of our law of bail as expounded in Maloupe (supra)

that even when one or more of the relevant risks are present, the court must, as part of

its decision-making process, consider whether conditions appear imposable which are

likely to reduce the relevant risk(s) to such an extent as to render them negligible, that is,

of an acceptable level, as, for instance, most passengers about to board a plane would

treat the risk of a plane crash. If the conditions contemplated can reduce the relevant

risk(s) to that level, then bail should not be refused.

8. The risk-reducing conditions which may be contemplated

8.1 It stands to reason that bail conditions may be imposed to avert or reduce

any of the risks which pre-trial detention seeks to annihilate. It follows that any condition

imposed must be capable of achieving that purpose, and that security could not be

solely related to the loss that the defendant is alleged to have caused: Neumeister v

Austria [1968] 1 ECHR 91 (27 June 1968), para. 10.

8.2 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. But the amount of security required should

not be higher than is reasonably necessary to achieve the relevant purpose as the

defendant’s right to liberty would then be unjustly curtailed if he has to remain in custody
 2
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because he or she cannot pay: Schertenlieb v Switzerland (supra, at para 8.2).

(N.B. DR refers to “Decisions and Reports” of the European Court, being the official

series published by the Council of Europe; 23 is the volume number and 137 and 196

page numbers)

8.3 Where the amount of security is intended to prevent the applicant from

absconding, it must necessarily be determined by reference to his assets and resources.

In Neumeister v Austria (supra, at para. 5.3), the European court said: “The guarantee

provided for by that Article (art. 5-3) is designed to ensure … the presence of the

accused at the hearing. Its amount must therefore be assessed principally by reference

to him, his assets and his relationship with the persons who are to provide the security.”

(The underlining if ours)

Where it is interference with witnesses which is feared, a condition could be

imposed that the applicant should keep away from any such witness under pain of the

security furnished by him being estreated and his detention resumed.

8.4 Appropriate conditions may be devised by legal advisers and courts. And

the decision to be made by the court, at the end of the day, is whether there are any

effective conditions which can be imposed.

9. Defects to be avoided in the decision-making process

9.1 It is appropriate to focus on the defects in the decision-making process

which judicial officers determining bail applications should guard themselves against. In

Yagci and Sargin v Turkey (supra, at para 8.3) the Court held that the applicants’ rights

under Article 5(3) had been violated by the refusal of the domestic courts to release
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them because the reasons which the national courts had given for their decisions – the

national courts based their decision on the “nature of the offences” (which, being

serious, gave rise to a presumption that the defendants would abscond), the “state of the

evidence” and the “date of arrest” – did not “stand up to scrutiny”. Specifically, the Court

said:

“the danger of an accused’s absconding cannot be gauged solely on the basis of

the severity of the sentence risked. It must be assessed with reference to a

number of other relevant factors which may either confirm the existence of a

danger of absconding or make it appear so slight that it cannot justify detention

pending trial. Yagci and Sargin had returned to Turkey of their own accord and

with the specific aim of founding the Turkish United Communist Party and they

could not be unaware that they would be prosecuted for this. The NSC’s

[National Security Court’s] orders confirming detention nearly always used an

identical, not to say stereotyped, form of words, without in any way explaining

why there was a danger of absconding.

9.2 In Muller v France [1997] ECHR 11 (17 March 1997), at paras 43-45]

despite the very serious nature of the offences charged (armed robbery, in

circumstances showing use of violence, theft and criminal conspiracy) the strength of the

evidence against the applicant (who had confessed his commission thereof) and the

previous record of the applicant (six previous convictions) the court held that it was “not

apparent from the decisions not to release the applicant that there was a real risk of his

absconding.”
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9.3 In IA v France [1998] ECHR 89 (23 Sept. 1998), at paras 105, 107, the

French Court’s refusal to release on bail an applicant charged with murder of his wife

was held to violate the convention as the reasoning on the basis of which the French

courts had found the existence of a risk to abscond – risk in view of seriousness of

offence – was “sketchy and deficient” whilst the reasoning offered in support of the

finding of a real risk that he would “repeat” the alleged offence failed to mention “any

considerations capable of substantiating it.”

9.4 The important points to note are –

(1) before the European Court of Justice it will be usually impossible for

a Government to establish that the national court had sound reasons

unless they are recorded in sufficient detail;

(2) where the national court uses a “stereotypical” form of words, the

court will interpret this as indicating a faulty decision-making

process, not merely an inadequate record of reasons.

(3) the decision process is not viewed as acceptable by the European

Court if the conclusion is not sustained by the facts upon which the

reasoning is based. In Matznetter v Austria [1969] ECHR 1 (10

November 1969) at para. 11, the court drew attention to the fact that

the applicant’s plausible explanations had not been refuted:

“As regards the danger of absconding … the applicant gave …

explanations which were not refuted and which the court

considers normal and credible. […]

10. Review of the Magistrates’ rulings

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10.1 The present case is the only one I have encountered so far which invites

this Court, whilst considering the applicant’s request to be released on bail, to see

whether four previous decisions – as opposed to one single such decision as is usually

the case – taken by four different Magistrates to refuse him bail were properly arrived at.

This gives this Court a golden opportunity to look simultaneously in one case at samples

of the decision-making process being adopted by our Magistrates in bail cases in the

exercise of its power and duty of supervision over lower courts under section 82 of the

Constitution, and to offer guidance which I feel our lower courts are in need of in view of

certain past pronouncements which cannot really be reconciled with the correct

approach to bail as explained in Maloupe (supra, at para 2.2).

(a) The first ruling of the Bail and Remand Court.

10.2 Annex A to the petition is a copy of the relevant ruling delivered on 20

December 2004. In connection with a provisional charge of “giving instructions to

commit a crime, to wit murder”, the police opposed the applicant’s motion for bail on the

following grounds as set out in the ruling of the learned Magistrate of the Bail and

Remand Court dated 20 December 2004:

“ 1. Applicant is likely to be charged with a serious offence

2. The likelihood that if released the applicant will tamper with evidence or

interfere with witnesses

3. The likelihood that applicant will fail to appear in court when required

4. The own protection of the applicant “

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The learned Magistrate found that “ground 1” was “fully substantiated” having regard to

the existence of admissible evidence and the severe penalty provided by the law, thus

erroneously –

(1) taking the likelihood of being charged with a serious offence as a

ground for refusal of bail rather than as a consideration whose

significance had to be assessed in the context of all other relevant

factors. (See para. 4.7 above);

(2) giving undue weight to the mere admissibility of evidence as

opposed to the particular quality of the evidence (see para 4.13

above);

(3) failing altogether to assess the weight of the above considerations in

relation to any of the relevant risks (see para 4.12 and 4.13 above);

10.3 The learned Magistrate considered grounds 2 and 3 together. In relation

to ground 2, the learned Magistrate relied on the fact that the “apprehension” was a

“severe one” and the dictum in Neeyamuthkhan v D.P.P. and anor (supra, at para 2.1)

that bail may be refused where there is a well founded risk that the applicant, if released,

would take action to prejudice the administration of justice. Clearly, the learned

Magistrate was taking general grounds for refusing bail as actual reasons for refusing

bail in that specific case without analysing the specific facts of the case to see if the

grounds were substantiated (see para 5.4 sub para. (3) above). Still in relation to

grounds 2 and 3, the learned Magistrate said that the risk of absconding and interfering

with witnesses or tampering with evidence was a “potential one”, relying on the dictum of

the learned Judge in B. Bacha v D.P.P. [1996 SCJ 69] that experience has shown that

generally in cases like murder an accused party may succumb to the temptation to
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abscond or interfere with witnesses. The relevant passage from that judgment is its last

paragraph which contains the following conclusion of the learned Judge:

“The proper test of whether bail should be granted or refused is whether it is

probable that the defendant will appear at the trial. Bail is also not to be withheld

as a punishment. See Noordally v Attorney General [1986 MR 204]. It cannot

be gainsaid however that two of the three charges which the two applicants have

to face are particularly serious. The first charge used to be punishable by a

mandatory death sentence. If found guilty the sentence likely to be passed will

still be consequential. Experience has shown that generally in such cases an

accused party may find it more tempting to jump bail and escape or interfere with

witnesses.”

I regrettably have to hold that this is not the right approach and would attract

similar criticisms as those levelled by the European Court of Human Rights against

several decisions of national European courts as indicated earlier (see para 5.3 and 5.4

above).

10.4 Ground 4 was dealt with as follows by the learned Magistrate:

“I hasten to say that people should not be kept in jail to ensure

their safety. The primary duty of the police is to protect life and

property”.

Although the present application for bail has not been opposed on that ground, I

feel bound, in the exercise of this Court’s supervisory jurisdiction, to comment on the

above approach of the learned Magistrate.

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10.5 Section 4(1)(b) of our Bail Act [Act No. 32 of 1999] provides that a

Judge or a Magistrate may refuse to release on bail a defendant or detainee when he is

satisfied that the latter should be kept in custody for his own protection. It has been

recognised in IA v France (supra, at para 9.3) that the protection of the defendant is

capable of being a relevant and sufficient reason for pre-trial detention, within the spirit

of Article 5 of the Convention, with, however, the following caveat:

“However, this can only be so in exceptional circumstances having to do with the

nature of the offences concerned, the conditions in which they were committed

and the context in which they took place.”

10.6 This ground is, in my view, accommodated within the rationale of our law

of bail, as explained in Maloupe (supra at para. 2.2), in the sense that the risk of

interference with the safety of the suspect would be related to the risk to society and to

the administration of justice: a risk which would materialise, notably, in the case of lynch

law resulting from strong public reaction to the particular crime or crimes committed and

which should not be tolerated in a civilised society cherishing respect for the rule of law.

10.7 The hasty pronouncement of the learned Magistrate of the Bail and

Remand Court in relation to that ground, to the effect that “people should not be kept in

jail to ensure safety,” was clearly based on an erroneous approach which should not be

followed, although that ground should only be applied with due restraint having regard to

the above remarks including the reference to the dictum from IA v France (supra, at para

9.3) where the words “exceptional circumstances” should retain our attention.
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(b) The ruling of the District Court of Curepipe

10.8 Annex B to the petition is a copy of this ruling dated 21 September 2004.

The applicant was provisionally charged before that court for drug dealing with

aggravating circumstances in breach of sections 30(1)(d)(ii), 41(3)(4), 45(1) and 47(5)(a)

of the Dangerous Drugs Act. The applicant’s motion to be released on bail was resisted

on five grounds. The ground relating to the need to protect the suspect was properly

viewed as a potential ground but rejected as unsubstantiated on the facts of the cases,

so that it need not retain my attention.

10.9 In relation to the invoked likelihood of the detainee being charged with a

serious offence, the learned Magistrate said:

“I fully go along with the submission put forward by prosecuting Counsel that, not

only would it be inappropriate to grant bail here but also that this would go against

established practice.” (emphasis added)

She went on to point out that the Supreme Court had launched a severe

reminder in the direction of the lower courts in The D.P.P. v The District Magistrate of

Port Louis & Ors. [1997 MR 158] in the following terms:

“The Court has a duty to maintain public confidence in our criminal justice system

by ensuring that its established practice is followed. It hopes that the lower

Court also will perform serenely its duties according to established practice and

the law”. (emphasis added).

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10.10 The learned Magistrate then went on to say that she did not lose sight,

however, of the fact that –

(1) there was now a statutory right to bail;

(2) she retained a discretion under section 4(1)(d) of the Bail Act 1999 to

release a detainee even if he was likely to be charged with a serious

offence; and

(3) according to classic judicial pronouncement, personal freedom was the rule

and pre-trial detention the exception.

10.11 However, she then referred to the following local decisions where bail

was refused essentially on the basis of the seriousness of the offence charged or likely

to be charged:

- D.P.P. v Seeparsad [2002 SCJ 189] where the Court considered that the

learned Magistrate had not given due consideration to the nature and

seriousness of the offence which, together with the heavy penalty that

may be imposed, “are matters that ought not be overlooked”

- Coureuse v The D.P.P. [2003 SCJ 283] where the seriousness of the

offence and the protection of society were retained as grounds for setting

aside the application.

And she pointed out that “even in Maloupe, the court evoked ‘standard practice’

to refuse the detainee’s release on bail”. That led her to conclude that ground 1 of the

grounds of objection – that the detainee was likely to be charged with a serious offence

– should succeed.
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10.12 I understand the difficulty of the learned Magistrate, who, whilst being

manifestly conscious of the rationale behind the law of bail as explained in Maloupe

(supra, at para 2.2), had to struggle with certain pronouncements of this court giving

effect to the seriousness of the offence as a ground per se and referring to established

practice in that connection as an almost overriding authority. It is unfortunate, that “even

Maloupe”, to use the words of the learned Magistrate (obviously prompted by the fact

that Maloupe is the case which for the first time explained the correct approach to bail)

invoked “standard practice” in reaching its actual decision, saying: “As the charge

levelled against the accused, albeit provisionally, is one of murder, we find no reason to

depart from the standard practice of this court in such cases to refuse a release on bail.”

My considered opinion is that, the Court in Maloupe (supra) in its judgment delivered by

the judge actually delivering the present judgment, adopted an incorrect decision

process towards the end of a judgment which otherwise correctly explained the law of

bail in Mauritius.

10.13 We have to acknowledge that, like the numerous national courts whose

decisions on bail based solely on the seriousness of the offence have been found by the

European court of Human Rights to have been reached by an incorrect decision-making

process, our courts have also on some occasions in the past adopted the wrong

approach in this connection. 0ur local Judges and Magistrates concerned need not

unduly blush as –

(1) eminent judges from countries with advanced legal systems have

also succumbed to the temptation of adopting this traditional

approach, mostly through blind adherence to precedents; and

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(2) it is only natural that like all sciences, legal science should evolve

and that modern judicial thinking as exemplified in the decisions of

the European Court of Human Rights and in the formulation of the

rationale of the law of bail in Maloupe (supra) should require a

relinquishment of the legacy of the past where, instead of being a

source of inspiration and springboard for advancement, it becomes

a hindrance to progress.

10.14 In relation to the grounds based on risk of absconding and risk of

interference with witnesses, the learned Magistrate essentially based her decision on the

strong apprehension, which according to Inspector Tuyau’s testimony, the police

entertained as to the realisation of those risks. The learned Magistrate, like her

colleague of the Bail and Remand Court, proceeded in the formulaic way decried by the

European Court of Human Rights by refusing bail by reference to the sweeping

statement in Bhinod Bacha v The D.P.P. (supra, para. 10.3) that “experience has shown

that generally in such cases (serious cases like murder) an accused party may find it

more tempting to jump bail and escape or interfere with witnesses.” So again here, the

decision-making process was faulty. That is not to say that on the facts, as presented in

evidence before the Magistrate, the same conclusion could not have been reached: this

Court is not called upon to consider that question, the precise facts as per the record not

being before this Court, anyway. The point I wish to drive home is that, as pointed out

by the jurisprudence of the European Court of Human Rights, it is only when (1) there

has been correct reasoning and (2) that correct reasoning has been made manifest in

the record of the decision, that there will not be a breach of the relevant human right, an

absence of correct reasoning on record leading to the presumption of an improper

exercise of discretion and thus of a breach of the relevant right.

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(c) The second ruling of the Bail and Remand Court (dated 21
September 2004)

10.15 Annex C to the petition is a copy of that ruling from another Magistrate

then posted at the Bail and Remand Court in case cause No. 785/04 where the charge

was one of giving instructions to murder one Philip Calou.

10.16 In relation to the “ground” alleging likelihood of the applicant being

charged with a serious offence, the Magistrate, like her two colleagues in the two

previous rulings considered so far, recited the refrain derived from D.P.P. v Seeparsad

(supra, at para. 6.11) that “the seriousness of the offence and the heavy penalty that

may be imposed, are matters that ought not to be overlooked.” Manifestly erring by

viewing this as a ground rather than a consideration, she failed to look at it in the context

of relevant facts to determine its bearing upon relevant risks.

10.17 In relation to the apprehension that the applicant would abscond and the

further apprehension that he would tamper with witnesses, she, like her colleagues in

the rulings considered earlier, unduly relied, in stereotypical fashion, on the dictum in

Bacha (supra, para. 6.14) has, which in my view, been wrongly adopted as a formula by

the lower courts and even by this court on some occasions. In relation to the ground

based on need of detention for the applicant’s own protection, she referred to the only

relevant evidence as being that to the effect that the police had received numerous

complaint letters regarding alleged criminal offences against the applicant. And after

paying lip-service to the formulation of the rationale of the law of bail in Maloupe (supra,

para. 4.10) she, in non-sequitur fashion, concluded that in the application before her, the

“risk to society, to the administration of justice are not negligible at all ” but are “live
 3
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ones”. In a nebulous lumping exercise, she then concluded that in view of “the

combined effect of the grounds of objection and the nature of the evidence available”

(she had noted there was admissible evidence but said nothing about its strength) she

was not prepared to exercise her discretion to grant bail.

10.18 Like the other Magistrates in the two previous rulings considered, she too

did not consider at all the possibility of imposing conditions which could avert or

sufficiently reduce any serious risk contemplated.

Suffice it to say that the decision-process in that ruling was extremely faulty,

having regard to what I have already explained earlier in this judgment.

(d) The third ruling of the Bail and Remand Court (dated 22
November 2004)

10.19 Annex D to the petition is a copy of that ruling from yet another Magistrate

sitting at Bail and Remand Court in case cause No. 1503/04. Here the applicant stood

provisionally charged with conspiracy to murder.

10.20 The learned Magistrate properly considered the ground based on the

applicant’s protection viewing that ground as being “farfetched” and pointing out that the

situation would have been different if threats had been received. However in relation to

the “ground” that the applicant was likely to be charged with a serious offence, the

learned Magistrate concluded from the penalty likely to be imposed upon a finding of

guilt, and the fact that the evidence was not in the category of “shaky, unreliable or

fanciful” evidence, that the ground was established.

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10.21 Here again, the learned Magistrate mistook seriousness of offence and

severity of relevant penalty for a ground instead of a consideration (albeit an important

one) and failed to carry the proper exercise of viewing that factor in context and in

relation to the relevant risks.

Furthermore, he did not properly assess the significance of the nature of the

evidence available to the police because –

(i) he was only content to see whether the police had evidence that

was not weak (“shaky, reliable or fanciful”) and did not ask himself

whether the evidence was in fact particular strong (in view of its

nature as per the meaning explained in Maloupe (supra, at para

2.2) ), thus looking at the evidence in a one-sided fashion, and

exposing himself to the perception of being prosecution-minded;

(ii) he obviously failed to bear in mind that the nature of the evidence

available would only be a significant consideration when it

indicates either that the evidence available is particularly strong or

particularly weak;

(iii) he also failed to link the nature of the evidence to the assessment

of particular risks.

10.22 In relation to the grounds that the applicant might “interfere with witnesses

or tamper with evidence” or “fail to appear in court as and when required”, which the

learned Magistrate lumped together in his consideration, he proceeded as follows:

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(1) He first properly directed his mind to the jurisprudence of the

European Court of Human Rights as referred to by this Court in

Neeyamuthkhan v D.P.P. & Anor (supra, at para 4.14) - a judgment

surprisingly not included in the Mauritius Reports 1999 - to the

effect that

- “risk must be identifiable and there must be evidence in support”,

- “risk will often diminish with time once investigation has

concluded”,

- “refusal of bail on [the ground of absconding] requires a whole set

of circumstances which gives reason to suppose that the hazards

of flight will seem to him to be a lesser evil than continued

imprisonment”; and

- “if risk of absconding is the only justification for detention, release

of the accused pending trial should be ordered if it is possible to

obtain guarantees that will ensure his appearance at trial”

(2) In purported application of the above principles, he then weighed in

the balance as against the release on bail of the applicant –

(a) the fact that the likelihood to abscond was not the only

justification relied upon for his detention

(b) the absence on record of relevant facts as regards

applicant’s family ties, his character, assets and home,

matters which, to the learned Magistrate’s mind, the

applicant “could have easily elucidated” by cross-

examination of the police witness

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(c) the fact that enquiry had not yet been completed and

therefore the risk that applicant might interfere with the

witnesses or tamper with evidence was still “inherent”

although the prosecution had adduced no other relevant

evidence in relation to that risk

(d) the need to bear in mind the Bacha dictum (see para 6.14

above).

10.23 The inescapable conclusion to be drawn from the above line of thinking of

the learned Magistrate is that he was concerned to weigh in the balance everything

which was in favour of continued detention and did not pay much attention to matters

which could weigh in favour of the applicant’s release on bail.

10.24 In relation to (a) above, he made an incorrect deduction by using a

principle established by the Strasbourg Court out of its context. When that court said

that release should be ordered when the sole risk is absconding and guarantees for the

suspect’s appearance at trial can be obtained, it never intended to mean, in our view,

that where this is not the sole risk, conditions could not be contemplated in view of

release if they can sufficiently minimise each relevant risk.

10.25 In relation to (b) above, since in a bail application, the onus is on the

police to show that continued detention is justified, the absence of the relevant facts

referred to could not, in my view, weigh in the balance against the applicant. If those

facts would have been in favour of the applicant, the latter has simply missed an

opportunity to strengthen his case and the same analysis goes for the party opposing
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bail. But the approach of the learned Magistrate, who appears to have misdirected

himself as to the burden of proof in bail cases, was clearly incorrect.

10.26 In relation to (c) above, the learned Magistrate gave undue importance to

the mere fact that there was a risk of interference with witnesses - in other words a mere

possibility of interference which exists in all cases when enquiry has not been completed

- and failed to assess the gravity and degree of the risk.

10.27 In relation to (d) above, the learned Magistrate attributed undue

importance, like all his other colleagues, to the general possibility, having regard to

human nature, that an applicant may be tempted to abscond, without having regard to all

other relevant factors, as indicated earlier in this judgment.

10.28 0n the whole, the ruling of the Magistrate displays an altogether incorrect

approach to the bail issue, especially as he has left out of his consideration altogether,

whether the risks found by him to exist could be sufficiently minimised by the imposition

of conditions.

11. The need for, and means by which, the quality of judgments in bail cases
could be improved

11.1 The above exercise – possibly unconventional and unprecedented in the

history of our case law relating to bail – has appeared to me to be a necessity to offer

guidance which according to me is not only badly needed, but also vital for putting back

on the rails the practice of our law of bail which could otherwise continue to follow the

wrong track to the detriment of one of our most precious rights – the right to liberty, a

fundamental right enshrined in our Constitution.

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11.2 Whilst the guidance given in this judgment may prove very helpful, it

would be desirable, in view of improving the quality of judgments in bail cases, that

appropriate training be given to judicial officers and I feel it my duty to draw the attention

of all those concerned, and in particular those who have the means of implementing

such measures, to their urgent nature. Such training has been contemplated, and has

possibly already started, in England, where the law Commission, it its Consultation

paper No. 157 entitled “Bail and the Human Rights Act 1998”, proposed at p.50 para.

4.25 that:

“magistrates and judges should be provided with appropriate guidance

and training on

(a) making bail decisions in a way which is compliant with Article

5, [of the European Convention on Human Rights] and

(b) recording their decision-making in such a way as clearly to

indicate how their decisions have been reached.”

11.3 I also deem it necessary that appropriate training be given to law officers

and to prosecutors to enable them –

(a) to better assess the propriety of objecting to bail, having regard to

the availability of conditions and

(b) to conduct bail cases (i.e. resist, in appropriate cases, bail

applications) such as to shoulder in an adequate manner the

burden of proof lying on the prosecution whilst at the same time

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placing before the court sufficient material to assist it in reaching

its decision whether to grant bail and, if so, on what conditions.

12. Applying the relevant principles to the facts of the present case

(a) The facts of the case as established in this application

12.1 This Court has to decide the present application on the basis of the rather

scanty material presented by both parties in this case. It is of course the responsibility of

Counsel on either side to place before the court all relevant facts which could further his

client’s case and the parties, along with their counsel, must be left to assume their

responsibilities in that connection.

12.2 By way of general comment, I find it deplorable that, whether through lack

of skill, competence, diligence or efficiency on the part of their legal advisers, parties in

bail applications often fail to place before the Court sufficient material to enable it to

reach an appropriate decision whether to release on bail, and if so, on what conditions.

Even within the adversarial model of justice – which pertains in Mauritius – the

need for judicial intervention is being more and more recognised in modern

administration of justice, the strict concept of the judge or magistrate limiting his role to

applying the rules of the game and refraining from “stepping into the ring” being

gradually relaxed in the best interests of justice. Still, the procedure being essentially

adversarial, judicial intervention remains the exception as opposed to the rule, and

careful reasoning must precede a decision whether, notably, to call for or invite a party,

or the parties, to adduce, evidence.

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12.3 If faced with scanty material, the court in a bail case must carry its normal

exercise of deciding whether the party who bears the burden of proof has discharged

that burden having regard to the state of the evidence, any lack of relevant material

being capable of furthering the case of one party or the other, depending on

circumstances. However, the decision of release on bail being a matter of public

interest, judicial intervention may be justified in appropriate circumstances.

12.4 In the determination of the bail issue, it appears to me that it would be

proper for the Court to invite the parties to consider the propriety of adducing evidence

on a relevant aspect on which no material or no sufficient material has been placed

before the Court. But judicial intervention by calling or ordering the calling of, such

evidence would be, in our view, an unwarranted departure from the general role of the

judge or magistrate within an adversarial system.

12.5 Bearing in mind my comments in para. 12.1 above I find the essential

facts placed on record before us in this case to be as follows:

(i) 0ffences which the petitioner is suspected to have committed

12.6 The petitioner is suspected to have committed numerous criminal

offences (in respect of which all but one of the charges are provisional charges before

the District Court of Port Louis) as follows:

1. knowingly delivering to Antoine Chetty 825 grams of

dangerous drugs, namely heroin, (worth Rs 8,250,000) in
circumstances indicating that the petitioner was a drug
trafficker [this is the only case in respect of which
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prosecution has been lodged and the trial dates in fact
already fixed]

2. giving instructions to commit the crime of arson (CN

784/04)

3. giving instructions to commit the crime of murder (CN

785/04)

4. conspiracy to commit murder (CN 786/04)

5. conspiracy to commit murder (CN 787/04)

6. conspiracy to conceal drugs at the premises of another

person (CN 790/04)
7. giving instructions to commit the crime of murder (CN
900/04)
8. conspiracy to conceal drugs at the premises of another
person (CN 901/04)
9. conspiracy to commit assault (CN 969/04)

10. conspiracy to cause serious bodily harm (CN 790/04)

11. conspiracy to commit assault (CN 827/04, 1st court)

12. conspiracy to murder (CN 827/04, 2nd court)

12.7 In short, the petitioner is suspected to have committed one drug-

trafficking offence, two offences of giving instructions to commit murder, one offence of

giving instructions to commit arson, three conspiracies to murder, two conspiracies to

conceal drugs at another person’s premises, and three conspiracies to commit assaults

with serious bodily harm.

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(ii) The offences in respect of which the petitioner has been refused
bail

12.8 The petitioner has been granted bail in respect of seven of the above

suspected offences but has been refused bail in respect of the offences numbered 1, 3,

4 and 7 above, that is, the drug trafficking charge, the two offences of giving instructions

to murder and the conspiracy to murder.

(iii) The circumstances of the suspected offences

12.9 The petitioner has only provided details of the four charges in respect of

which he has been given bail and the first respondent has not provided this court with

further details of the other charges. As indicated earlier in the review of the rulings

refusing bail, the drug trafficking charge is about the delivery to Antoine Chetty of 825

grams of heroin worth Rs 8,250,000, the alleged instructions to murder were in relation

to alleged targeted victims Lalldev Gujudhur (sum of Rs 60,000 allegedly offered for the

executor) and Philip Calou (sum of Rs 500,000 allegedly offered for the execution). And

the alleged conspiracy to murder is an alleged agreement with other persons to murder

one Parvez Damree.

(iv) Particular factors relating to the petitioner

12.10 The petitioner is a notary and has been practising in Mauritius since 1996

until he was arrested on 23 March 2004 by the Anti Drug and Smuggling Unit of the

police in connection with the allegations of Antoine Chetty. As a notary, he has the

custody of deed and documents of various clients. His office has been placed under

seal. As we would expect in the case of a notary who was still practising until his arrest,

he has a clean record.

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12.11 Family-wise, the petitioner is, according to his unrebutted affidavit

evidence, the sole breadwinner of his family which is facing financial difficulties since his

detention. Property-wise, he is a man with certain assets all of which have been frozen

as a result of a court order.

Health-wise, the petitioner is, according to his unrebutted affidavit evidence, a

cardiac patient, but no details have been given in that connection.

(v) The nature of the evidence available against the petitioner

12.12 Having regard to type of evidence available and external circumstances

affecting the quality of the evidence, it is difficult in this case to consider the nature of

evidence, in any of the suspected cases, as a weighty factor in the balance either in

favour of, or against, a release on bail. A factor such as lack of evidence in relation to

an element of an offence would, for example, have been such a weighty factor.

Accordingly, although some account must be taken of the fact that the cases

substantially rest on the evidence of a self-confessed criminal and accomplice whose

uncorroborated evidence, albeit admissible, is of a type upon which it is considered to be

normally dangerous to act without corroboration, that consideration can only be of little

weight in favour of the petitioner as there can still be a conviction if the court is

sufficiently impressed by the witness’s credibility as to consider that the usual danger is

not present.

(vi) Available conditions

12.13 Conditions which could be imposed in view of minimising the relevant

risks invoked by the first respondent are the usual ones but specific evidence has been

made available in relation to one of those conditions, namely security in cash and assets
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having regard to the means and willingness of the petitioner. A copy of an affidavit of

disclosure filed by the petitioner shows the property, moveable and immoveable, owned

by the petitioner in Mauritius, and Counsel for the first respondent has stated that it is

agreed that the contents of that affidavit correctly represent the assets of the petitioner in

Mauritius. Counsel for the petitioner has, moreover, stated that the latter is willing to

offer as security for his release on bail (i) all the assets which he possesses and which

are listed in the affidavit of disclosure, and (ii) a plot of land owned by his brother and

which the latter is willing to use as such security.

(vii) Length of detention up to now and prospect of trial within a

reasonable time

12.14 The petitioner has been in detention since the day of his arrest on 23

March 2004, i.e., for some 17 months. The first of the charges with which he stands

suspected – the drug trafficking charge – is due to be tried before this court from 10 to

14 0ctober 2005.

(b) The delicate weighing exercise

12.15 The weighing exercise in a bail application is not an easy one for the

court. And the legal advisers, in particular Counsel on both sides, should do their best to

assist this court in this exercise by placing before the court adequate evidence and by

offering well reasoned submissions in line with the law.

(i) Weighing the risk of interference with witness Chetty

12.16 I first turn to the risk of interference with witness Chetty as this issue can

be quickly dealt with.

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Mr. M. Gobin, Ag. Senior State Counsel, relied on the severity of the potential

sentences in the event of eventual findings of guilt, to argue that the petitioner would be

tempted to interfere with witness Antoine Chetty. I pointed out to him that his reasoning

would mean that in all cases where the offence carries a severe penalty the ground

invoking likely interference with a witness would be bound to succeed. He then

conceded that this could not be the case but submitted that the likelihood of interference

in the present case was based on the relationship of former employer and former

employee between the petitioner and his ex-driver. However, the unrebutted evidence

before this Court indicates that the relationship between the two has deteriorated. For

reasons which will soon become clear, I shall not, at this stage, make a finding as to the

risk of interference with witness Chetty.

(ii) Weighing the risk of absconding

12.17 I next turn to the risk of absconding. The severity of the sentence which

may be inflicted upon the petitioner in the event of a conviction does not in itself justify

the inference that he or she would attempt to evade trial following release on bail (see

supra para 5.3).

12.18 In the present case, the essential factor creating a risk of absconding is

the prospect of heavy penalties (including mandatory penal servitude for a term of 45

years) which the petitioner would incur should he be found guilty of the relevant

offences.

12.19 0n the other hand, the facts before this Court which can reasonably be

considered as capable of minimising that risk are: the petitioner’s occupation and

professional ties, the fact that he has a family to support (although that factor is not of
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great weight as no details have been given of his family and of circumstances explaining

the extent of their dependence) his previously clean record, the fact that he did return to

Mauritius when allegations of drug-trafficking involving a huge amount of heroin had

been levelled against him by his driver, his property ties in Mauritius and the nature of

the evidence against him as analysed earlier.

12.20 Moreover, it is imperative to consider, as in all bail cases, the possibility of

reducing the risk of absconding to an acceptable level by the imposition of conditions,

notably those mentioned at para. 12.13 above.

12.21 Again, for reasons which will become apparent later in this judgment, I

shall not proceed, at this stage, to state a conclusion in relation to the risk of absconding.

(iii) Weighing the risk of offending

12.22 Turning to the risk, in case the petitioner happens to be guilty of the

offences with which he stands charged, that he may offend whilst on bail, the Court is,

here again, engaged in an exercise of prediction. The court is dealing with probabilities,

considering reasonable arguments, based on the facts of the case, for and against the

proposition that if released the applicant, on the assumption that he has committed the

offences in question, - a necessary assumption as we are here evaluating risk – would

reoffend. Hence the requirement in Clooth v Belgium (supra at para 56) that the danger

of offending must be plausible.

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- The temptation to offend

12.23 Now, on the assumption that the petitioner is guilty of the offence of drug

trafficking attributed to him, it is arguable, on the one hand, that the temptation to re-

offend would be significant in view of the lucrative nature of drug-trafficking, one of the

offences laid at his door.

12.24 Also, on the same assumption, it is arguable that the other offences

suggest a mafia involving a business of money making by causing people to be killed or

injured at the request of paying clients, such that the temptation to offend would again be

significant.

12.25 0n the other hand it is arguable that even on that assumption, a person in

the shoes of the petitioner, who has a clean record, and who faces evidence based on

the word of a self-confessed criminal and accomplice, would not think that he has

nothing to lose by offending, but would be careful not to take the risks of detection

involved in the commission of further offences.

- The consequences if the risk materialises

12.26 0bviously, the reasonable approach to risk-taking involves a level of risk-

taking in inverse proportion to the evil consequences likely to result if the risk

materialises. The lesser the consequences, the higher the level of risk which may

reasonably be taken. And the greater the consequences, the lesser the acceptable level

of risk.

12.27 In that perspective, the argument that the consequences of re-offending

would be drastic must be taken seriously. It is indeed reasonably arguable that

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indulgence in drug trafficking in quantities comparable to the amount involved in the drug

dealing charge during the pre-trial period could result in immense harm to society such

that we should not take anything but the slightest risk. A similar argument would be

equally understandable in relation to the consequences likely to result from a

perpetuation of the conspiracies to commit murder, assaults and arson and the giving of

instructions to hired killers to commit murders and serious assault.

12.28 0n the other hand, it could also be reasonably argued that having regard

to the weight which the presumption of innocence must have in the balance in this case

having regard to the nature of the evidence and the clean record of the petitioner this

case is one where the level of risk in release is acceptable, inasmuch as the risk, in the

event of the petitioner being eventually acquitted of the charges, that an innocent person

would have been kept in detention for a fairly long period cannot be undervalued.

Indeed, Mr. 0llivry Q.C. , Counsel for the appellant, has laid stress on the effect of

prolonged pre-trial detention by referring to the pronouncement in Letellier v France

(1991) ECHR 35 (26 June 1991) that with the passage of time, continued pre-trial

detention based on sufficient grounds may cease to be based on sufficient grounds,

having regard to the right to liberty. We also agree that the right to trial within a

reasonable time is relevant here, although we would not consider that the length of

detention up to now would provide a strong argument, in the circumstances of the case,

that there has been, as at now, a breach of that right, a matter on which we are not, as

indicated above, called upon to rule, in any event, in this application.

12.29 And again here, the possibility of imposing conditions to reduce the risk

we are here concerned with to an acceptable level, must be considered, this being an

indispensable element of proper decision-making in relation to bail.

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12.30 0nce more, I shall not evaluate at this stage, the risk of offending for

reasons which will now be stated.

(c) An overriding consideration: the imminence of the first trial

12.31 The prospect of several eventual trials, with the trial for the drug-

trafficking case (which is likely to be a test case as to facts relevant to the value of the

testimony of witness Antoine Chetty) being scheduled to be heard on five consecutive

days from 10 to 14 0ctober 2005, that is, in some 20 days’ time, is, however, a particular

feature of this case. The outcome of that first case will, whether the prosecution is

successful, or the accused (the petitioner) wins the day, constitute a major development

of circumstances relevant to the risks invoked by the police and even to the value of the

security offered by the petitioner (since a conviction might result in an eventual seizure

of the petitioner’s assets).

12.32 In other words, an important development is expected to take place very

soon which will inevitably require the bail issue to be re-assessed, for a change in

circumstances will have occurred.

12.33 If the petitioner is found guilty and appeals, then the arguability of his

grounds of appeal will be a new and important consideration. Also, a conviction would

have a bearing upon the degree of temptation to abscond pending appeal.

12.34 0n the other hand, if the petitioner is acquitted upon the testimony of

Antoine Chetty proving unsatisfactory, the nature of the evidence in relation to the other

cases is again most likely to call for re-consideration because the evidence in those

cases similarly consist, essentially, of testimony expected from Antoine Chetty.

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13. My decision on the present application

13.1 I accordingly hold the view that it would not be appropriate to take a

decision at this stage on the bail application as it would make no sense to determine a

delicate question where there are reasonably strong arguments both for and against the

release on bail of the petitioner when the situation is expected to evolve within a very

near future bringing new elements which may tilt the balance in favour of or against the

release on bail of the petitioner. All the more so as the learned Director of Public

Prosecutions, mindful of the importance of personal liberty in the case of persons who

are presumed innocent and have not yet been tried, will undoubtedly upon the outcome

of the first case, immediately take a firm decision as to the abandonment or the

immediate lodging of the other charges: thus giving rise to a new consideration to be

weighed in the balance.

13.2 Putting this case for mention in view of reporting progress following the

determination of the drug trafficking case and then proceeding with a reassessment of

the bail issue upon progress being reported in relation to the new developments being

awaited would have been an option. But since the evidence adduced by affidavit in the

present application has been scanty on both sides, as pointed out above, I consider that

it will be in the best interests of justice that the issue be considered anew upon a fresh

application being, upon occasion arising, entered before this Court, and upon Counsel

taking benefit of the guidance offered in the present case.

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13.3 The petition is accordingly set aside. As a final pronouncement has not

been made on the bail issue, I make no order as to costs.

E. Balancy
Judge

20 September 2005