Supreme Court of Mauritius, 10 avril 2020, 2020 BRC 55 – Police v Shandish Gokool

Police v Shandish Gokool

2020 BRC 55

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1178/19 (Rose Hill) BRC Cause Number 1989/19

In the matter of:

Police

v/s

Shandish Gokool

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES: POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF DELIVERING in breach of Sections 30 (1) (f) (i), 41(1) (i) (2) and 47 (5) (a) of the Dangerous Drug Act coupled with GN 242/13. The Applicant has moved that he be admitted to bail and he was represented by Me. Y. Varma at the bail hearing and the hearing for the prosecution was conducted by State Counsel. The proceedings were held in English language.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of:

• Risk of absconding • Risk of re-offending

THE CASE FOR THE PROSECUTION

PS Ramkhelawon posted at ADSU, the main enquiry officer was called by the Prosecution and he explained that he had been deputed by the Commissioner of Police to resist the present bail application on the above mentioned grounds. The police officer went on to explain that on 18 th May 2019 the Applicant who is a prison officer called for duty at Beau Bassin Central Prison and was subjected to a body search by prison officers. The court was informed that one black insulating tape parcel was found concealed in his anus containing a significant amount of leaf matter

suspected to be synthetic cannabinoids. The main enquiry officer explained that there was direct evidence against the Applicant who had confessed to the charge and he further informed the court that the street value of the drug was Rs 69, 900. The officer stated that the police enquiry was nearly over as further enquiries from superior officers were being attended. In relation to the first ground of objection the main enquiry officer explained that since Applicant is a prison officer and since the offence took place in a penal institution, he is likely to be prosecuted for a serious offence which could entail a severe penalty and therefore, if granted bail, the police believe that Applicant may abscond. In relation to the second ground of objection the officer explained that drug dealing was a lucrative business and also based on the confession of Applicant to the effect that he was to deliver the drugs to a detainee the police believe that he will indulge in the drug business. The court was informed that Applicant was not on bail and he was also not borne on record. In cross examination the enquiry officer stated that Applicant would not have access to the prison as he has been interdicted and he confirmed that Applicant had a fixed place of abode as well as family ties.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to make a statement from the dock. He went on to state that he would comply with all bail conditions imposed by the court. Defence Counsel briefly submitted on the facts and referred to the case of Labonne though no legal authority was filed. State Counsel mentioned the case of Marthe and Korrimbaccus and left matters for the court to appreciate.

THE RELEVANT SECTIONS OF THE LAW

In the case of Hurnam v The State [2005 UKPC 49], the Privy Council held that only section 4(1) (a) of the 1999 Act specifies the core reasons for refusing bail. Individually, they are to be considered to provide a conclusive reason for refusing bail. Section 4(1)(a) of the Bail Act 1999 reads as follows:

4. Refusal to release on bail

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where (a) (a) he is satisfied that there is reasonable ground for believing that the defendant or detainee if released is likely to – (i) (i) fail to surrender to custody or to appear before a court as and when required (ii) (ii) commit an offence, other than an offence punishable only by a fine not exceeding 1000 rupees (iii) (iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

Secondly, as regards to paragraphs 4 (1)(b) to (f) of the Bail Act which are not compelling grounds or core reasons per se to deprive an individual of his liberty but, if relevant, the court need to take into account in order to determine the likelihood of the risks listed in section 4(l)(a) to materialise. The section of the Bail Act 1999 provides as follows:

(1) A Judge or a Magistrate may refuse to release a defendant or a detainee on bail where-

(b) he is satisfied that the defendant or detainee should be kept in custody – (i) for his own protection; or (ii) in the case of a minor, for his own welfare; (c) the defendant or detainee, having been released on bail, has – (i) committed an act referred to in paragraph (a); or (ii) breached any other condition imposed on him for his release: (d) the defendant or detainee is charged or is likely to be charged with a serious offence; (e) there is reasonable ground for believing that the defendant or detainee has – (i) given false or misleading information regarding his names or address; or 5 (ii) no fixed place of abode; (f) a detainee has failed to comply with section 12(2).

Thirdly, a set of consideration is provided under section 4(2) of the Bail Act 1999 to assess the likelihood of the risks enumerated under section 4(l) (a) to materialise. This section provides that:

In making a determination under subsection (1), the Judge or Magistrate shall have regard to such considerations as appear to the Judge or Magistrate to be relevant, including –

(a) the nature of the offence and the penalty applicable thereto; (b) the character and antecedents of the defendant or detainee; (c) the nature of the evidence available with regard to the offence.

Hence, the wording of section 4(1) of the Bail Act 1999 makes it clear that release on bail at pretrial stage is the release upon conditions designed to ensure that the suspect:

(1) appears for his trial, if he is eventually prosecuted;

(2) in case he happens to be the author of the offence of which is he suspected, does no further harm to society whilst being at large; and (3) does not interfere with the course of justice, should he be so minded.

The rationale as to bail was clearly set out in the case of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held as follows:

“The rationale of the law of bail at pre-trial stage is, accordingly, that a person should normally be released on bail if the imposition of the conditions reduces the risks referred to above- i.e risk of absconding, risk to administration of justice, risk to society- to such an extent that they become negligible having regard to the weight which the presumption of innocence should carry in the balance when the imposition of the above conditions is considered to be unlikely to make any of the above risks negligible, then bail is to be refused.”

It is also trite law that in deciding whether to grant bail to the applicant, a balance must be struck between “on the one hand the need to safeguard the necessary respect for the liberty of the citizen viewed in the context of the presumption of innocence and, on the other hand the need to ensure that society and the administration of justice are reasonable protected against serious risks which might materialise in the event that the detainee is really the criminal which he is suspected to be” [Labonne v. DPP & Anor 2005 SCJ 38]

RISK OF ABSCONDING

The Court shall deal with the first ground of objection raised by the police namely that there is a likelihood that the Applicant could abscond if released. I shall refer to the case of LABONNE (JV) VS DIRECTOR OF PUBLIC PROSECUTIONS [2005 SCJ 38], whereby it has been averred as follows:

“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”.

Therefore, the very fact that the Applicant might eventually face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The Court has further considered the principle stated in the case of WEMHOFF V GERMANY [1968 ECHR 2] namely that:

“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.”

There is no evidence that Applicant has absconded in the past as he has a clean record. I note that Applicant has family ties and a he also has a fixed place of abode. However, I note that it is not in dispute that Applicant has been interdicted from duty and in light of his confession to the offence charged I find that the ground of objection is not only an apprehension and can be sustained. The Court has further considered the risks of the Applicant’s absconding, namely “(…) 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.” (RE: NEUMEISTER VS AUSTRIA [1968 1 ECHR 91] .

In the present case, further, bearing in mind that Mauritius is a small island having other islands as neighbours and that it would be impossible for our authorities to keep the whole of the shores in Mauritius under constant surveillance, there is an increased responsibility on this court, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see that justice is not baffled when Accused parties awaiting trial simply leave the country by hiring powerful boats as has been the case in the past. (Re: The Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]). Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible.

RISK OF RE-OFFENDING

Regarding the second ground of objection, there is no doubt that drug dealing being a lucrative business, there is a serious risk of the applicant being tempted to commit further offences, the more so when one considers the value of the drugs recovered in this case and the aggravating circumstances in which the drugs were to be delivered in a penal institution. Taking into account that Applicant has nothing more to lose, I am therefore satisfied that the danger of re offending is “plausible” [as stated in Deelchand v. DPP & Anor (supra) citing Clooth v. Belgium [1991] ECHR 71 (12 December 1991) at para 40].

I have therefore addressed and applied the two-limbed test as laid down in the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (Supra), namely that:

(i) if the evidence against him appears strong, he is more likely to think he has nothing to lose by re-offending;

(ii) if the evidence appears weak to him, he will be less likely to take the risk of detection upon re-offending.

I have assessed an overview of the evidence. (RE: MALOUPE VS DISTRICTMAGISTRATE OF GRAND PORT [2000 MR 64]. In the present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer there is real police evidence against him. In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (2011) SCJ 101 , his Lordship laid down as follows:

“Although the risk of re-offending would necessarily be based on conjecture, the nature of the offence charged and the record of an applicant are useful pointers for a court to decide on this issue”.

I have borne in mind that even if there is a risk of the Applicant re-offending, the Court should consider whether conditions can be imposed on the Applicant to render these risks negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). An imposition of a heavy security will ensure the Applicant’s appearance before Court and will be an incentive for him not to indulge in any other offence. In the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS (SUPRA), the Learned Judge had this to say:

“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”.

I have also taken into account the Applicant’s statement from the dock to the effect that he is prepared to abide by all conditions imposed by the court. After carrying out the required balancing exercise, I therefore admit Applicant to bail on the following bail conditions:

(1) Applicant is to furnish a surety of Rs 120, 000 in cash (2) Applicant is to enter into a recognizance of Rs 500, 000 in his own name (3) Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours (4) A curfew order is imposed on Applicant. He is to remain indoors at his residential address as provided to the police between 20 00 hours and 05 00 hours on a daily basis. In case of emergency, the police are to be contacted to inform them of his predicament before proceeding outside during the hours of curfew (5) The Applicant is not commit any offence whilst on bail

B. PRAYAG-RAJCOOMAR (Mrs)

Ag. Senior District Magistrate This 10 th April 2020