IN THE BAIL AND REMAND COURT

Transcription

1 police v/s Laboudeuse 2015 BRC 10 IN THE BAIL AND REMAND COURT Provisional Cause number: 236/15 In the matter of: POLICE v/s (1) JOSHAN RAGGOO (2) GHISLAN-MARIE RONNY VINCENT GAIQUI (3) JEAN FRANCOIS NUMA (4) JONNY LABOUDEUSE (5) VIKASH PERSAND RULING:- Accused parties, who are all police officers, stand provisionally charged with the offence of murder; in breach of sections 216 and 222(1) (a) of the Criminal Code and section 22(2)(a) of the Criminal Procedure Act. It is alleged in the provisional charge that they had criminally, wilfully of their malice aforethought and premeditation killed Mr Mohamed Iqbal Toofany. Learned counsel appearing for Accused no 4 (Applicant in the present proceedings) has moved that the latter be released on bail. The prosecution is objecting to the motion on the following grounds:- (a) risk of absconding; (b) for his own protection; and (c) risk of interference with witnesses and tampering with evidence. Facts and circumstances of the case

2 On Monday the 2 March 2015, at about 0100 hours, the personnel of Black-River Emergency Response Service of the police ( ERS ) stopped a car bearing registration number 3166 ZN 00 at Black River opposite the entrance of La Balise Marina for checking purposes. The police officers noticed that the registration number appearing on the insurance vignette and the motor vehicle licence list were different from that on the registration plate. The driver of the car, late Mr Mohamed Iqbal Toofany was questioned but he could not explain the said disparity. Whilst searching the car, the police officers found some tools including a hacksaw, knife, screwdrivers and a box spanner in a bag. Since Mr Toofany could not also explain possession of these tools, he was brought to Black River Police Station for inquiry. At the station, police officers did the basic formalities of ascertaining his formal address and the ownership of vehicle 3166 ZN 00. At about 0200 hours, the ERS personnel handed over Mr Toofany, who then was a suspect, to the Applicant who was on duty at the material time. The ERS officers at that time inserted an entry that Mr Toofany bore no marks of violence and made no complaint. Applicant, who is an officer of the Criminal Investigation Division ( CID ), was later joined by 4 of his colleagues of the same unit. Eventually, at about 0435 hours, that team of CID officers, along with Mr Toofany, left for enquiry purposes in the area of Rose-Hill. At hours, the team including Mr Toofany were in the yard of Bambous Police Station when apparently Mr Toofany complained of belly pain. He was then taken to Victoria hospital where he passed away at hours whilst receiving treatment. An autopsy was carried out on the same day and it revealed the presence of bruises on not less than 15 places on the corpse. In fact, following an entry made in the occurrence book of the Central Criminal Investigation Division ( CCID ), an inquiry was initiated in this matter. Further to the police enquiry, on the 4 March 2015, a provisional charge of torture was lodged against Applicant and the other Accused parties before the District Court of Black- River. Applicant was arrested and granted bail in relation to that provisional charge. Subsequently, a second provisional charge was lodged against Applicant and the other Accused parties. The provisional charge of torture was then struck out. The nature of evidence Before addressing the nature of the evidence in this matter against Applicant, I find it apposite at this juncture to bear in mind the following principles:

3 (a) In our criminal justice system, anyone who stands charged with a criminal offence or who even faces a provisional charge is innocent until proven guilty, commonly known as the presumption of innocence; (b) A detainee has a right to bail unless there are relevant and sufficient reasons to justify interference with that right. It therefore, logically follows that bail is the general rule and detention is the exception, vide section 3 of our Constitution and Noordally v Attorney General and D.P.P [1986 MR 204]; (c) In considering whether or not to grant bail, the seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail, vide Labonne v/s Director of Public Prosecutions [2005 SCJ 38]; (d) In an application for bail, the court should not examine..the precise evidence available to the police and to conclude as to whether it amounts to a prima facie case Witnesses in the course of the hearing of an application for bail should only be allowed to depone as to the nature i.e the kind of evidence available (including external circumstances which have a bearing on its quality.. vide Maloupe v/s The District Magistrate of Grand Port and anors [2000 SCJ 223] Based on all the above principles including that enunciated in Maloupe (supra), I shall now proceed to consider the nature of the evidence available against Applicant and I also note that he has not adduced any evidence in the present matter. Parallel to my analysis of the nature of the evidence in this case, I also bear in mind that the enquiry is not completed and is at an early stage. The enquiring officer stated in court that he was not in a position to indicate when same will be completed. I take the view at this stage, that when a provisional charge has been levelled against an Accused party, the assessment of the nature of the evidence must obviously relate to the offence mentioned in the said provisional charge. In the present matter, the provisional charge is murder. Therefore, I shall proceed to assess the nature of the evidence in relation to the offence of murder and its constitutive elements. Applicant has denied the charge. The enquiring officer stated that according to the medico legal report, Mr Toofany died of acute pulmonary oedema caused by hypovolemic shock

4 following soft tissue injuries. There is alleged direct evidence from one witness who has seen acts of brutality perpetrated on Mr Toofany. However, that witness has not directly incriminated the Applicant. There is also circumstantial evidence based on the fact that Mr Toofany was in the custody of Applicant and his colleagues. Mr Toofany was taken in good health and ended up dead with injuries over his body. Therefore the nature of evidence against Applicant consists of; (a) the medico legal report certifying the cause of death; (b) the evidence of a witness who has not directly incriminated Applicant; and (c) circumstantial evidence based on the fact that Mr Toofany was in custody of Applicant. One of the constitutive elements of the offence of murder is premeditation which depends on the circumstances of each case. I take the view that the facts and circumstances of this case at such early stage of the inquiry does not hint to premeditation for the following reasons; (1) the cause of death in the medico legal report is acute pulmonary oedema caused by hypovolemic shock following soft tissue injuries. The enquiring officer also stated that bruises were found on not less 15 places on the corpse. However, no more details were provided, in particular on the exact location of those bruises or soft tissue injuries. Ex facie the evidence on record, there is also no indication as to what could have caused these nor has any causal link been established with Applicant; (2) the witness who allegedly saw acts of police brutality being perpetrated on Mr Toofany has not directly incriminated the Applicant; (3) On the facts and circumstances of this case, Mr Toofany was not in the sole custody of the Applicant all along. Mr Toofany was, prior to his death, with two units of police officers, namely the ERS and the CID. Furthermore, Mr Toofany was also with the other Accused parties. It is on record that Mr Toofany passed away at Victoria hospital whilst receiving treatment. During the time when Applicant was with Mr Toofany, there is nothing which presently pinpoints to any suspicious acts by Applicant nor to the extent of his participation (if any) to any suspicious acts upon Mr Toofany. (4) It is on record that an enquiry started after the death of Mr Toofany and that Applicant together with the other Accused parties were arrested on a provisional charge of torture. They were all released on bail without any objection on the part of the police. They were

5 again called by the police on 19 March 2015 for the present charge of murder because the police had apparently gathered new evidence whilst they were on bail. It is the contention of the police that matters have evolved and there is new evidence that triggered the provisional charge of murder, however I have not been apprised as to the nature of this new evidence. Based on the above, I take the view that the nature of the evidence available against Applicant with regard to murder is frail and that the presumption of innocence should operate in his favour. The Risk of Absconding The enquiring officer stated that given that the charge against Applicant is one of murder which carries a heavy penalty, it would easily motivate the Applicant to abscond and evade justice. In the case of Deelchand v/s the Director of Public Prosecutions and others 2005 SCJ 215, the Supreme Court held that: 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. (the underlining is mine) 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 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 underlining is mine)..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. In the present case, the essential factor creating the risk of absconding is the prospect of a heavy penalty (a penal servitude for a term of 45 years) which Applicant could incur if found

6 guilty. But on the other hand, there are facts on record which can be considered as capable of demotivating the Applicant to abscond, such as his clean record, his professional ties (he has been a law enforcement officer for the past 15 years), he has a fixed place of abode and has previously been on bail albeit for a charge of torture but did not breach any bail conditions. I find that regardless of these factors, given, (a) the seriousness of the provisional charge against the Applicant, (b) the heavy penalty he may face if convicted, and (c) the fact that there is no evidence on his family ties, I am of the view that there is a risk of absconding. At a later stage, I will consider whether conditions can be imposed to reduce this risk to an acceptable level. For Applicant`s own security This ground is supported on the basis that there has been a big wave of hostility that arose against Applicant and other Accused parties in this case on the 20 March 2015 at the District Court of Black River where all the Accused parties have had a mere escape. The police strongly believes that, if at large, the security of Applicant will be at stake. In cross examination, the enquiring officer reckoned that following the death of Mr Toofany, the Applicant was in fact on bail, and during this period that is from the 4 to the 20 March 2015 Applicant did not report to the police any security problems he may have faced. There is no evidence that persons who allegedly acted in a hostile manner against Applicant and other Accused parties have been apprehended. Furthermore, it is on record that on 26 March 2015 when Applicant and Accused parties appeared before the District Court Black River for their remand date, there was no hostile crowd and the police has made all necessary arrangements to avoid any incident. I take the view that in order to deny a person bail for reason of his own security, credible evidence has to be adduced on that aspect. The enquiring officer did not explain clearly what he meant by Applicant having a mere escape. The wave of hostility appears to have been under the control of the police and there had not been any concerns in relation to Applicant`s security whilst he was on bail. I, therefore, hold that this ground has not been substantiated. Risk of interference with witnesses and tampering with evidence The enquiry is at an early stage. All police officers who have been on duty at the various places where the deceased was taken, have not yet given their statements. Furthermore, there are documents and devices that are yet to be examined. The police believes that

7 Applicant being a police officer will have easy access to these police officers and would be in a position to influence their testimony to the detriment of the investigation. A witness, who although has not directly incriminated Applicant, resides in Black River and since Applicant also resides in Black River, the latter may interfere with that witness. The police is interviewing persons every day and constantly gathering new piece of evidence including documents. I bear in mind that the enquiry is at an early stage. I also note that Applicant is a police officer counting about fifteen years of service in the police force. Applicant was posted in the investigation division when arrested. Indeed, Applicant knows many police officers and it is reasonable to consider that he may have friends in the police force. That being said, I shall now proceed to evaluate this risk as well as its legal features. In Deelchand (supra), the Supreme Court on the risk on interference with witnesses stated that: 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. It, therefore, follows that the risk or probability of interference with witnesses is not a generalised risk. It is a risk which has to be serious, specified, identifiable and supported with appropriate evidence. On the evidence on record, it appears that the backbone of the prosecution`s contentions under this ground rests on the status of the Applicant as a police officer. Secondly, it is stated that Applicant may interfere with police officers who have been on duty at the various places where the deceased was taken. It has not been established whether Applicant even knows these police officers. Thirdly, it is feared that Applicant may interfere with devices and documents that are yet to be obtained and examined. However, I note that these devices and documents have not even been described and it has not been established how they are relevant to the prosecution`s case against the Applicant. Fourthly, the police fears that Applicant may interfere with a witness who resides in the same locality as he does. However, it is clear on the evidence on record that the said witness has not

8 directly incriminated the Applicant. It remains unclear as to what would really motivate the Applicant to interfere with such a witness. Furthermore in Deelchand the Supreme court quoted from Bail in Criminal Proceedings (1990), Neil Corre, and stated that the learned author 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; (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; Applicant has a clean record. There is no evidence that he has allegedly threatened witnesses in the past nor has he shown any intentions or manifestations of doing so. In addition to that, it is on record that Applicant, for the same facts and circumstances of this present case, was provisionally charged with an offence of torture and was consequently released on bail for that provisional charge. The new evidence allegedly gathered by the police which gave rise to this provisional charge of murder was in fact gathered at the material time whilst the Applicant was on bail. I note there is no evidence adduced by the police to establish that Applicant whilst on bail has tampered and interfered and/or has attempted to tamper and interfere with any kind of evidence or witnesses in relation to; (i) the provisional charge of torture ( a charge which is less serious than murder but which is albeit a serious charge);

9 (ii) the recoupment of the new evidence and the new evidence that gave rise to this provisional charge. However, as and when the enquiry progresses and takes a more concrete shape against an accused, the mind-set of the latter may change when faced with the likelihood of real consequences, vide Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]. In the said case, the Supreme Court also held that not only the past conduct of a person has to be looked at, but also a projection of what that person may do or may be tempted to do in the future bearing in mind the more recent developments in the circumstances surrounding his case. Therefore, I find that there is the likelihood that the enquiry, whilst progressing, can take a more concrete shape against Applicant. In that case, the risk of interference with witnesses and tampering with evidence cannot simply be discarded and may well be felt in the circumstances, the more so since Applicant is a police officer who was, until his arrest, posted in the investigation division of the police. The balancing exercise and the imposition of conditions This is a delicate exercise and the central issue is whether conditions can be imposed to reduce the prevailing risks to an acceptable level. In the case of Maloupe(supra), quoted with approval in the landmark case of Hurnam v/s the State 2004 PRV 53, it is stated that The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above i.e. risk of absconding, risk to the administration of justice, risk to society to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance. (the underlining is mine) Given that Applicant; (i) has a clean record, (ii) did not breach any conditions whilst he was on bail, and coupled with my evaluation above on the risks of absconding and the risk on interference with witnesses and tampering with evidence, I take the view that since the nature of the evidence against Applicant relating to the offence murder is frail, this causes weight which the presumption of innocence carries in the balance to tilt in the Applicant`s favour for his release on bail, with the imposition of conditions that would make the level of the risks on his release acceptable.

10 That being said, there is an issue which, in my view, needs to be addressed and which is peculiar to the facts of this application. It is on record that there is currently a Judicial Enquiry on the facts which led to the death of Mr Toofany before the District Court of Black River. Applicant is a witness in the said Judicial Enquiry. In analysing the said issue, I am not questioning the powers of the prosecuting authorities to hold or initiate a Judicial Enquiry in this matter, nor is the course of this Judicial Enquiry being questioned. I bear in mind that the jurisdiction of the Bail and Remand Court has been seized with regards to Applicant`s release on bail only and other extraneous matters should be disregarded. However, since this issue has arisen in the course of this bail application, it is a matter that I cannot purely and simply disregard. The aim of a Judicial Enquiry is to inquire into the cause of the death and circumstances connected with it. Vide section 111 of the District and Intermediate Courts (Criminal Jurisdiction Act) It is to be noted that the reason why the present provisional charge has been levelled against Applicant is because he is allegedly suspected to have murdered Mr Toofany and, whilst this provisional charge remains pending against the Applicant, a Judicial Enquiry into the cause of death of Mr Toofany is being carried out simultaneously. This is a relevant factor which reinforces my finding above that the presumption of innocence operates in favour of Applicant. Conclusion Having carried out the balancing exercise, I, therefore, hold that the constitutional right of the Applicant to be released on bail outweighs the need for him to be continuously detained. I grant him bail on the following conditions: (1) Applicant shall furnish a surety of Rs 50,000; (2) Applicant shall enter into a recognisance in his own name of Rs 700,000; (3) given that the alleged incident took place at Black River Police Station, Applicant shall report to Bel Ombre Police Station every Monday, Wednesday and Saturday once at any time between 6 a.m. and 6 p.m.; (4) Applicant shall not in any manner whatsoever, interfere with prosecution witnesses and tamper with evidence, in this matter.

11 Ruling delivered on the 6 th of April 2015, by HH Prithiviraj Balluck, District Magistrate of the Bail and Remand Court.