Police v Herbert Christopher Aldo Pape

Transcription

1 Police v Herbert Christopher Aldo Pape 2017 UPW 120 IN THE DISTRICT COURT OF UPW PROV CN 1043/17 POLICE V HERBERT CHRISTOPHER ALDO PAPE RULING On 27 June 2017, Mr Herbert Christopher Aldo Pape was provisionally charged with the offence of Murder contrary to section 216 read with section 222 of the Criminal Code. It is alleged that on 25 June 2017, at Floreal, he criminally, wilfully and with malice aforethought kill one Israel Georges Herve Pape, for which, he has been arrested and detained by the police since 27 June On 4 July 2017, applicant moved this Court that he be admitted to bail pursuant to s 4 of the Bail Act 1999, which motion was resisted by the Prosecution. WPI Nauthoo who appeared for the State opposed the application and affirmed that the application was incompetent on the sole ground that, If released, applicant may fail to surrender to custody or appear in Court as and when required. The history of the matter as revealed by the main enquiring officer is as follows-

2 On 26 June 2017, following a request, Police proceeded to Pierre Simonet Street, Floreal, where one Isreal George Herve Pape was found lying unconscious on his bed, with traces of violence on the face and upper part of the body. SAMU was immediately called for and they certified his death on spot. The body was then sent to PMOC for autopsy. Applicant and his mother, Mrs Audrey Pape was brought to CID office for questioning, during which both admitted that applicant had assaulted the deceased following an argument deceased had with his wife. The witness explained that the charge will eventually be reduced to one of wounds and blows causing death, without intention to kill but that the file would have to be referred to the DPP s office first. She however added that if found guilty even on a charge of wounds and blows causing death, without intention to kill, applicant would face the risk of a term of imprisonment. She claimed that since accused regularly travelled to France, his girlfriend being a French national, there was a possibility that he could abscond. Under cross examination, the witness admitted that both applicant and his mother confirmed that applicant assaulted the deceased, in an attempt to defend his mother, Mrs Audrey Pape, who was then being assaulted by the deceased. She conceded that applicant had a clean record, was not on bail, had a fixed place of abode and a fixed employment. She further conceded that applicant had only one passport and that there was a prohibition order against him. That was the state of evidence presented by the prosecution. The detainee expressed his determination to abide by all conditions imposed by this Court in the event of him being granted bail, from the dock. I have duly considered the merits of the present application.

3 The presumption of innocence is the privilege of every accused. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted. Any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. The consequences of pre-trial detention are grave. Accused parties who are still presumed innocent, are subjected to the psychological and physical deprivations of jail life. The detainee loses his job if he has one. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test.

4 Hence any citizen of this country, who is charged with a criminal offence, has the right to bail. Unless there is a clear necessity for deprivation of his liberty, a person should not be remanded to judicial custody. In dealing with an application of this nature (i.e. an application for bail), it is necessary to strike a balance as far as can be done between protecting the liberty of the individual and safeguarding and ensuring the proper administration of Justice. If there are indications that the proper administration of justice and the safeguarding thereof may be defeated or frustrated if an accused is allowed out on bail, the court will be fully justified in refusing to allow him bail. Now, Prosecution is relying on the sole ground that there is a risk that applicant may abscond if found guilty, in view of the seriousness of the charge. In the instant case, I have already noticed that the "pointing finger of accusation" against the applicant is 'the seriousness of the charge'. Though, Prosecution contended that there was a possibility of the applicant absconding, they have not placed any material in support of the allegation. It has been stated time and again that seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or factor. The quantum of punishment could not be the only determinative factor for the magnitude of an offence. I cannot undertake a meticulous examination of the evidence collected by the police and comment on the same, at this stage. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. The court has to only opine as to whether there is prima facie case against the accused. And though I fail to find any element of murder against the applicant, there could be a prima facie case of wounds and blows causing death, without intention to kill, against him. The primary consideration which I must weigh is whether the applicant is likely to evade the due course of justice. But, that is not all. I have noted that gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to the victim, the

5 likelihood of the accused fleeing from justice, and of jeopardizing his own life being faced with a grim prospect of a possible conviction in the case, the history of the case as well as its investigation. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record - particularly a record which suggests that he is likely to abscond while on bail. But there is nothing to suggest that applicant has ever violated the trust placed in him by the court since he is of clean record and is not on bail. The circumstances and the social milieu do not militate against the applicant being granted bail at this stage either- he is stated to be a young man, with a stable family life and a secure job. I have also paid heed to the concern of the Prosecution that applicant could flee to France if he is ever allowed bail. I find this argument unmeritorious since, there is already a Prohibition Order against applicant. In order to deprive a detainee of his freedom there must be a cognizable indication that the applicant will not stand trial. In the present case the State did not in my view put forward any evidence upon which a suggestion can be founded that if granted bail the applicant will more likely than not, abscond. In the circumstances, I am satisfied that it would be wrong to deny applicant bail on the basis of an expression of a fear, without supporting evidence, that he will abscond. In view of the above, I hold that the continued detention of the Applicant is unwarranted in this case. I therefore grant the applicant bail upon the following conditions: 1. The Applicant to provide a surety of Rs 30,000 in cash; 2. The Applicant to enter a recognizance of Rs 75,000;

6 3. The Applicant to report to Floreal police station every Monday and Thursday between 6 am to 6 pm. I so order. Meenakshi Bhogun Senior District Magistrate Delivered on 11 July 2017