Supreme Court of Mauritius, 18 mai 2020, 2020 PL2 35 – Police v Rujabally

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Police v Rujabally

2020 PL2 35

POLICE v RUJABALLY

Provisional CN 3153/2020 PLN SN 57 COVID Nos. 66 and 99

IN THE DISTRICT COURT OF PORT LOUIS (Division II)

In the matter of:-

Police

v.

Mohammad Sheik Umar RUJABALLY

RULING

Applicant stands provisionally charged with the offences of: – Drug Dealing: Possession of Cannabis for the purpose of selling in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act [“the DDA”]; – Drug Dealing: Possession of Cannabis seeds for the purpose of cultivating Cannabis plants in breach of sections 30(1)(f)(i) and 47(5)(a) of the DDA; – Money Laundering in breach of sections 39(1)(a)(2), 47(5)(a) and 48 of the DDA.

At the bail hearing, Me. Teeluckdharry appeared for Applicant, and Me. Bissessur, State Counsel, conducted the case for Prosecution, in the presence of Inspector Mooniaruth.

Me. Teeluckdharry informed the Court that Applicant is conversant in English, and therefore, the proceedings may be held in English. All the parties agreed that the bail application be heard via video call because of the COVID-19 pandemic and lockdown restrictions.

Prosecution contended that Applicant should not be admitted to bail on the following grounds: – risk of absconding; – risk of interfering with witnesses and tampering with evidence; and – risk of reoffending.

Section 4(1)(a)(i) Bail Act 1999 (Act 32/1999) [“the Bail Act”] provides that the Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to fail to surrender to custody or to appear before a Court as and when required.

Here, the Enquiring Officer, PS Balgobin from ADSU, explained in his testimony that there is a risk that Applicant may abscond given that he is provisionally charged with serious offences and the sentences applicable to such offences are severe. True it is that, heavy penalties are provided under the DDA for drug dealing and money laundering offences. Section 30(1)(f)(i) of the DDA provides for a fine not exceeding one million rupees and penal servitude for a term not exceeding 25 years where the drug dealing offence involves Cannabis, and section 39(1)(a) of the DDA provides for a fine not exceeding one million rupees and imprisonment for a term not exceeding 20 years for the offence of money laundering. However, the Supreme Court pointed out in Labonne v The D.P.P. and The District Magistrate of Black River [2005 SCJ 38] that the seriousness of the offence is only one of the considerations to be taken into account, and will not by itself provide adequate ground for refusing bail. In the present matter, the Enquiring Officer conceded, during his cross-examination, having seen the elderly father and mother of Applicant though he could not confirm if they actually leave with him. The Enquiring Officer also stated that Applicant works as a storekeeper when questioned about his occupation, and admitted that Applicant has a fixed place of abode. Applicant’s family ties, his occupation and his fixed place of abode are relevant considerations, in the opinion of the Court, to justify that he is unlikely to abscond. Besides, the Enquiring Officer replied in the negative to the question of whether there is evidence that Applicant tried to contact person to escape from jurisdiction. In the circumstances, the Court is of view that the risk of absconding is not adequately substantiated by Prosecution.

As regards the risk of interfering with witnesses and tampering with evidence, section 4(1)(a)(iii) of the Bail Act is relevant. It provides that a Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

In Deelchand v The Director of Public Prosecutions and others [2005 SCJ 215], it was observed that to satisfy the Court that there is a serious risk of interference with a witness, satisfactory reasons, and evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by applicant.

The Court in Deelchand (supra) also cited the book “Bail in Criminal Proceedings” (1990) by Neil Corre, where it was pointed 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”. The Court quoted the following excerpt from the said book: “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 The exception does not apply simply because there are further police enquiries or merely because there are suspects who have yet to be apprehended”.

It is clear from the above that the fact that Police is still investigating will not by itself provide adequate ground for refusing bail. It is incumbent on Prosecution to substantiate its contention that Applicant, if released on bail, would tamper with evidence or interfere with witnesses. Here, the Enquiring Officer admitted that the exhibits are in the secured possession of the Police, and as such, the risk of tampering with evidence is remote. In addition, during cross-examination, the Enquiring Officer conceded that the Police did not secure the mobile phone of Applicant though he stated that Applicant is suspected to form part of a drug network operation in the region of Port Louis. The Enquiring Officer also conceded that Applicant has the right to remain silent. As such, it cannot be inferred from the fact that Applicant did not say anything about where he obtained the drugs, to whom the drugs belong or to whom the money belong that he will tamper with evidence or interfere with witnesses if released on bail. In these circumstances, the Court is of view that the risks of interfering with witnesses and tampering with evidence are not sufficiently substantiated.

As regards the risk of reoffending, section 4(1)(a)(ii) of the Bail Act is of relevance. It provides that a Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to commit an offence, other than an offence punishable only by a fine.

The Supreme Court in Deelchand (supra) underlined that the risk of offending must be a real one and there must be adequate reasons to explain its existence. The Supreme Court also cited with approval the case of Clooth v Belgium [1991] ECHR 71 (12 December 1991) where it was said that the danger of a serious offence being committed by an applicant whilst on bail should be a plausible one.

Here, the Enquiring Officer explained during his examination in chief that Applicant is likely to reoffend having regard to the value of the drugs which is Rs.190,000 and the fact that drug dealing is a lucrative business. When questioned about the nature of the evidence, the Enquiring Officer stated that the drugs were secured at the place of Applicant. As explained by the Supreme Court in the case of Deelchand (supra), the nature of the evidence is to be related to the risk of reoffending where, having regard to its type and to factors affecting its quality, it is either so patently strong or weak as to have a bearing on that risk. If the evidence against Applicant appears strong, he is more likely to think that he has nothing to lose by reoffending; and if the evidence appears weak to him, he will be less likely to take the risk of detection upon reoffending. Here, the Enquiring Officer deposed in a straightforward manner that the drugs and the sum of money of Rs.22,125/- were secured at Applicant’s place, and his testimony remained unrebutted. In the circumstances, the nature of the evidence appears to be strong, and as such, the risk of reoffending is not excluded.

In addition, as mentioned above, drug dealing and money laundering offences attract heavy penalties. In the case of Deelchand (supra), the Supreme Court observed that the sentence expected in case of conviction is a relevant consideration because of the greater risk that the offender may think he has nothing to lose by offending whilst on bail. Here, the prospect of heavy penalties which Applicant would incur, should he be found guilty, is a relevant consideration.

Moreover, Counsel for Applicant, in his submissions, invited the Court to consider his clean record. In that respect, Prosecution made reference to the Supreme Court judgment Director of Public Prosecutions v Poonye [2018 SCJ 182] where it was held that “the fact that one has a clean record does not necessarily mean that that person could not have previously been involved in illegal activities. Everything will depend on the facts of that particular case.”. In the present case, the Court is of view that the risk of reoffending exists on the basis of the abovementioned reasons.

Counsel for Applicant also invited the Court to consider the imposition of stringent bail conditions if need be. Applicant also made a statement from the dock that he will abide by the conditions.

In that respect, the rationale of the law of bail at pre-trial stage as explained in Maloupe v District Magistrate of Grand Port i.p.o. Director of Public Prosecutions [2000 SCJ 223] is of relevance. The Supreme Court observed that a person should normally be released on bail if the imposition of the conditions reduces the 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; and when the imposition of the conditions is considered to be unlikely to make any of the risks negligible, then bail is to be refused. In Deelchand (supra), the Supreme Court pointed out that security appears applicable to all the risks as it may be an incentive to an applicant to appear for trial, to behave whilst on bail and to refrain from interfering with witnesses, or tampering with evidence.

Here, the Court is of view that the risk of reoffending can be reduced by the imposition of conditions such that it becomes negligible having regard to the weight which the presumption of innocence should carry in the balance. The Court also notes from the testimony of the Enquiring Officer that there is no indication as to when Applicant is going to be tried and Police is still waiting for an appointment with FSL for the examination of the drugs secured.

Consequently, the Court orders that Applicant be released on bail subject to the fulfilment of the following conditions: i. he shall provide a security in the sum of Rs.250,000/-; ii. enter into a recognizance in the sum of Rs.1,000,000/- in his own name; iii. it shall be his responsibility to: a. be permanently equipped with a mobile phone and the number of which he shall communicate in advance to one or more Police officers nominated for that purpose; b. ensure that the mobile phone is in good working condition and open for communication at all times; iv. he shall reside at a fixed place of residence indicated by him to the Police; v. he shall, by virtue of a curfew order hereby imposed upon him, remain at his place of residence daily from 8p.m to 5a.m, and in case of emergency situation, he shall inform the Police of same before leaving his place of residence during the said curfew hours; and vi. he shall report to the Police Station nearest to his place of residence once daily between 6:00a.m and 6p.m as from the next day after the end of the confinement period.

Z Cassamally (Dr) Ag. District Magistrate 18.05.2020