Supreme Court of Mauritius, 12 juin 2020, 2020 BRC 163 – Police v Alvinio Maurizio Steward Labonne

Police v Alvinio Maurizio Steward Labonne

2020 BRC 163

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1704/18 (Rose Hill) BRC Cause Number 2885/18

In the matter of:

Police

v/s

Alvinio Maurizio Steward Labonne

RULING

The Applicant stands provisionally charged with the offences of (1) DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES: POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF SELLING WITH AVERMENT OF TRAFFICKING in breach of Sections 30 (1) (f) (ii), 41 (3) (4) and 47 (5) (a) of the Dangerous Drugs Act coupled with GN 242/13 and (2) DRUG DEALING: POSSESSION OF HEROIN FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Me. S. Hussenbocus appearing together with Me. N. Balgobin-Kandhai at the bail hearing. The hearing for the Respondent was conducted by State Counsel, Me. Bungaroo and the Court proceedings were held in English language. This is a fresh bail hearing for the Applicant on the ground of delay as the first bail motion was set aside by the then Presiding Magistrate of the Bail and Remand Court on 13 th May 2019. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the sole ground of Risk of re-offending.

THE CASE FOR THE PROSECUTION

PS 6261 Bissessur, 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 ground. The police officer went on to explain that on 9 th August 2018 at 10 50 hours the police searched the dwelling house of Applicant at Plaisance, Rose Hill and secured an aluminium plate containing a significant amount of damp substance suspected to be synthetic cannabinoids. The main enquiry officer explained that the substance was analysed by the FSL and was found to contain 600.6 grams of cannabis. He further elaborated and explained that the police also secured a plastic parcel containing 6 parcels containing leaf matter weighing 6.8 grams and 1 plastic parcel also containing 3.75 grams of synthetic cannabinoids. The officer moreover stated that the police also secured 29 aluminium foils containing heroin. The Court was informed by the main enquiry officer that the total value of the drug amounted to Rs 419 450 and as per Count 1 of the provisional information the police was suspecting that the drug secured was synthetic cannabinoids but the analysis revealed that the drug was cannabis. The police officer went on to explain that the evidence against the Applicant was direct and that the latter had had admitted the seizure of the drugs at his place but had denied that the drugs were meant for sale.

In relation to the ground of objection, the main enquiry officer explained that based on the fact that drug dealing is a lucrative business and that the amount of drug seized speaks for itself. The officer explained that the police have strong belief that if Applicant is granted bail he will indulge anew in the same activity. Doc X was filed to show that the Applicant is borne on record and the officer explained that the police enquiry was over and that the PF 100 was being drafted and will be soon sent to the Office of the DPP for advice. The main enquiry officer explained that some 3 to 4 months will be needed for the main case to be lodged.

In cross examination the main enquiry officer admitted that he did not know when the main case will be lodged and he further confirmed that the Applicant had denied the charges against him. The police officer finally conceded that he had no evidence to back up the ground of objection raised. The case for the prosecution was closed after the State Counsel elected not to re-exam the main enquiry officer.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and from the dock he stated that he would abide by all bail conditions imposed by the Court. No defence witness was called and the case was then closed for the Defence.

Both Counsels for the Applicant and that for the Respondent offered brief submissions.

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 RE-OFFENDING

Regarding the only ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking being a lucrative business and the substantial value of the drugs secured in the present case, there is a serious risk of the Applicant being tempted to commit further offences. I have borne in mind the test as laid down in the case of CLOOTH V BELGIUM [1991] ECHR 71 (12 DECEMBER 1991), that is whether “the “danger” of a serious offence being committed by the applicant whilst on bail should be “a plausible one”.

On this score, I have assessed an overview of the evidence as per the decision in MALOUPE VS DISTR ICT MAGISTRATE OF GRAND PORT [2000 MR 64] and I have taken into account the records of the Applicant which act as useful pointers in ascertaining the risk of re-offending on the part of the Applicant as referred to in the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES DISTRICT COURT, PAMPLEMOUSSES [2011 SCJ 101].

I have considered that in the present case, the Applicant admitted seizure of the drugs, hence the evidence appears to be strong against him. On the other hand, I have further considered the fact that the Applicant has denied that the drug seized was meant for selling. I have noted that the Applicant is borne on record for a case of possession of cannabis only and therefore it cannot be said that he has an overriding pattern of behaviour which would induce him to commit a similar offence if released. Despite the lucrative nature of the drug business, I find that there is no evidence to support to the only ground of objection raised by the police. In any event, the main enquiry officer in cross examination himself admitted that he had no evidence to support his ground of objection making it a mere apprehension by the police. The ground of objection therefore cannot stand.

I find therefore that 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 that he is prepared to abide by any conditions that the Court may impose. I am of the opinion that there are conditions, even severe ones, which could be imposed to effectively reduce the risk of the Applicant re-offending to a negligible level.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances does not outweigh his right to remain at large. The Applicant is to be granted bail on the following conditions:

(1) The Applicant is to furnish a first surety of Rs 300, 000 by bank cheque; (2) The Applicant is to furnish a second surety of Rs 400, 000 (open); (3) The Applicant to enter into a recognizance in the sum of Rs 1, 000,000 in his own name; (4) The Applicant is to reside at a fixed place of address, address provided to the police; (5) The Applicant is to report to the nearest police station once daily between 06 00 hours and 18 00 hours; (6) The Applicant should not commit any offence and reoffend whilst on bail; (7) 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; (8) The Applicant is to be permanently equipped with a mobile phone, the number of which he shall communicate in advance to the ADSU officers nominated for that purpose; (9) The Applicant is to ensure that the mobile phone is in good working condition and open for communication at all times to enable ADSU officers at any time to ascertain his movements and location and if necessary to direct him to be in attendance at any indicated spot.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 12 th June 2020