Supreme Court of Mauritius, 2 juin 2020, 2020 BRC 148 – Police v Vanesta Devika Seechurn

Police v Vanesta Devika Seechurn

2020 BRC 148

IN THE BAIL AND REMAND COURT

Provisional Cause Number 710/2018 (Grand Port) BRC Cause Number 2791/18

In the matter of:

Police

v/s

Vanesta Devika Seechurn

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES (Causing Cannabis to be imported with an averment of trafficking) in breach of Sections 30 (1) (b) (i), 47 (2) (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Me. R. Rutnah at the bail hearing. The hearing for the Respondent was conducted by State Counsel and the Court proceedings were held in English for the benefit of the Applicant. 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 January 2020.

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

• Risk of re-offending • Risk of absconding

. THE CASE FOR THE PROSECUTION

WPS 92 Carpouron, the main enquiry officer was called by the Prosecution and she explained that she 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 28 th May 2018 upon the arrival of flight MK 844 from Cape Town, one Louis Frederic Adeline was arrested after he was found in possession of 3.134 kg Cannabis which were concealed in cakes in a handbag. The officer went on to explain that the said Adeline stated that he travelled to Cape Town with the Applicant and her family members, that is with Applicant’s sister and Applicant’s brother in law. Adeline explained in his statement that whilst in Cape Town, in Applicant’s presence, her brother in law gave him instructions to carry Cannabis in the handbag and he stated further that the handbag containing the drug was remitted to him by the Applicant herself. The main enquiry officer further explained that Adeline further added that on their return, both he and Applicant travelled as a couple to evade police surveillance. WPS Carpouron further informed the Court that the value of the drug was one million eight hundred thousand and eighty Mauritian Rupees.

In relation to the risk of re-offending ground of objection, the main enquiry officer revealed that the Applicant travelled to Cape Town and back to Mauritius together with her family members and Adeline acting as a couple to circumvent police vigilance and she explained that the mode of concealment of the drugs was astutely done for them to stay ahead of police detention. The enquiry officer stated clearly that the allegation against the Application has shown that it was a family business having contacts with persons in South Africa. Furthermore, the police officer explained that the case reflects a large scale drug business with a local family network as well as international ramification. The enquiry officer explained that the allegation also showed that the Applicant as well as her family members masterminded the drug transaction in the present case. WPS Carpouron explained that based on all of the above, the police have every reason to believe that the Applicant will re-offend as she has the necessary know how and also considering that drug business is a lucrative one and that she has weak professional ties.

In relation to the risk of absconding ground of objection the main enquiry officer explained that the enquiry has revealed that Applicant is a casual hair dresser and does not have strong professional ties and is separated from her husband who has the custody of their children. The officer informed the Court that the Applicant left Mauritius in the year 2017 for Belgium to marry a Belgium National and she explained that this shows that Applicant does not have strong family ties. The main enquiry officer pointed out that the offence against the Applicant is one of drug dealing with the averment of trafficking which is a serious offence and if found guilty she will face mandatory imprisonment. The Court was informed that the police has built a strong case against the Applicant and that this might prompt the Applicant to escape if granted bail. The main enquiry officer stated that the Applicant had a clean record and was not currently on bail and that after a further statement is recorded from a co-Accused, the police will compile the file and send it to higher officers for the drafting of the PF 100. The main enquiry officer explained that there is documentary evidence and real evidence both against the Applicant as well as CCTV footages pertaining to her arrival and departure at the airport.

In cross examination the main enquiry officer explained that the Applicant was arrested at her sister’s and brother in law’s place at Closel, Phoenix after Adeline had positively identified her and that she lived at her mother’s place following her separation with her husband. The officer confirmed that the provisional charge was lodged two years ago against the Applicant and she stated that the prohibition order against her did not guarantee that she would not escape as there were many ways she could escape. The police officer confirmed that the Applicant was not on bail and that she had a clean record and she stated that as per the version of Adeline, it is Applicant’s brother in law who hid the drug in the handbag. The police officer confirmed that correspondence was sent to Interpol and information was still being awaited regarding the contact persons of Applicant in South Africa and she stated that she could not say when the information would be received. The police officer stated that the case file would be compiled in two months’ time and sent to superior officers and she admitted that she could not say when the formal charge would be lodged against the Applicant. The police officer stated that she could not confirm if Applicant has the facility of a private jet or yacht and she explained that she did not enquire into the lifestyle of Applicant. The police enquiry confirmed that Applicant’s sister and brother in law had both been granted bail and the case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained her Constitutional Rights and from the dock she stated that she 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 on the facts of this present case and on the principles of bail as established by the case law.

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

Regarding the second ground of objection for bail, being given the seriousness of the offence and the probable custodial sentence to be imposed should Applicant be found guilty, there is no doubt, a serious risk that she may be tempted to abscond. However, this court also has to take into account other factors in deciding whether there is a serious risk of absconding. Indeed, “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… other factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country… may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” [As per Deelchand v. The State [2005] SCJ 251 citing Neumeister v. Austria (1968) 1 ECHR 91]

I have taken into consideration the fact that Applicant has a fixed place of abode at her mother’s place and that her husband has got the custody of their children. I have looked at the past conduct of the Applicant based on the reasoning that it would be indicative of what she may be capable of doing. I have also tried to make a reasonable projection of what the Applicant may do or may be tempted to do in the future bearing in mind the developments and circumstances surrounding her case. I have considered the fact that the police enquiry is still ongoing and has very much progressed and will be completed as soon as a further statement is recorded from a co-Accused. I note that information from Interpol is yet to be obtained and I have even considered the fact that Applicant has a clean record and was not on bail when she was arrested for the present case. In light of the direct evidence against the Applicant and the contacts that she has in the drug business as apparent from the documentary and real evidence obtained by the police and in light of the international ramification of the present case especially with contacts in South Africa who can help her to travel abroad and take refuge outside our jurisdiction and after further taking into account the means that can be obtained to effect payment in order to meet the expenses or organizing and carrying out the act of absconding, especially if it involves leaving the country 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. This ground of objection can stand.

RISK OF RE-OFFENDING

Regarding the first 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. The more so when one considers the active participation of the Applicant and the machination put in place to circumvent police vigilance at the airport. I take note of the presumption of innocence of the Applicant and I have considered that under oath the main enquiry officer stated that there was direct, documentary and real evidence linking the Applicant with the business of drugs. 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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . 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 therefore taken into account the past records of the Applicant. In the present case, the Applicant is of clean record and not on bail. I have borne in mind that although 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 that she is prepared to abide by any conditions that the Court may impose. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level. I find that this ground of objection can stand.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs her right to remain at large. The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9].

In light of the above and after finding that the delay so far in this case is not of an undue nature taking into account the complexity of the police enquiry, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible taking into account the amount of time spent by Applicant on remand so far and to lodge the formal charge against her so that she is tried within a reasonable time as guaranteed by the Constitution.

I am reminding the authorities that there are several pronouncements of the Supreme Court stressing the need for the prosecution authorities to adopt a fast track procedure in cases where defendants are the subject of pre-trial detention, as is the case before this bench today. (Re: Teeluckchand v District Magistrate of Riviere du Rempart [1989 SCJ 56] and Director of Public Prosecutions v Hurnam [2004 SCJ 153]).

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 2 nd June 2020