Supreme Court of Mauritius, 2 mars 2020, 2020 BRC 107 – ARM Venus v Police

1 ARM Venus v Police

2020 BRC 107

Provisional Cause Number 104/20 (Savanne) BRC Cause Number 553/20 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Alan Rudy Marvin Venus v/s Police RULING

Introduction

1. The Applicant stands charged with the offences of 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 under Count I, drug dealing: possession of synthetic cannabinoids for the purpose of selling in breach of sections 30(1)(f)(ii) and 47(5)(a) of the Dangerous Drugs Act under Count II and drug dealing: possession of cannabis seeds for the purpose of cultivating in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act under Count III. He has been on remand since the 27 th January 2020 and his Counsel, Me Sauhobooa, has moved that he be admitted to bail.

2. Facts and circumstances of the case

On the 25 th January 2020, the Police searched the Applicant’s house and secured a small plastic sachet, from under a table, containing a foil, which in turn wrapped a certain quantity of suspected synthetic drugs, four foils, each wrapping a certain quantity of suspected synthetic drugs and a foil, wrapping a certain quantity of suspected heroin, as well as a printed paper parcel, containing five

2 suspected cannabis seeds. The value of the drugs secured is Rs 11,500 and the Applicant has confessed to possession only.

Case for Respondent

3. PS Sauteur, of ADSU Savanne, has been deputed by the Commissioner of Police to resist bail in the present case on the following ground:

(i) Risk of reoffending

4. In relation to the ground of objection, it is the contention of the Police that given that drugs is a lucrative business and taking into account the quantity and value of the drugs secured, the Applicant will reoffend if granted bail. It came out that the latter has a clean record and is not on bail.

5. The enquiry is short of the FSL report only.

6. The main EO was duly cross examined by Learned Counsel.

Case for the Applicant

7. From the dock, the Applicant stated that he would abide to all conditions imposed if released on bail, he is the sole breadwinner and his family needs him.

The Law

8. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

9. Section 3 of the Bail Act provides that “Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

10. Section 4 (1) of the Bail Act reads as follows:

A court may refuse to release a defendant or detainee on bail where –

3 (a) it is satisfied that there is reasonable ground to believe that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) it is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection;

(ii) in the case of a minor, for his own welfare; or

(iii) for the preservation of public order;

(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

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12 (2).

4 11. Section 4(2) of the Bail Act provides that:

In considering whether or not to refuse bail on any ground mentioned in subsection (1), the Court shall decide the matter by weighing the interests of society against the right of the defendant or detainee to his liberty and the prejudice he is likely to suffer if he is detained in custody, taking into account every consideration which, in its opinion, is relevant, including –

(a) the period for which the defendant or detainee has already been in custody since his arrest;

(b) the nature and gravity of the offence with which the defendant or detainee is or is likely to be charged and the nature and gravity of the penalty which may be imposed on him;

(c) the character, association, means, community ties and antecedents of the defendant or detainee, including any non-compliance with any condition imposed for his release on bail with respect to any other offence; and

(d) the nature of the evidence available with regard to the offence with which the defendant is charged.

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

“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 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 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.”

13. I bear in mind that the right balance has to be struck between the constitutional right of the Applicant to enjoy freedom and the interest of society at large.

14. It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 that “In all countries where human rights are respected, the function of the law of bail is likely to be the same, being to reconcile, as stated in Labonne v The D.P.P (supra, at para 2.2.), “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 reasonably protected against serious risks which might materialise in the event that the detainee is really a criminal which he is suspected to be.”

15. In Islam v The Senior District Magistrate Grand Port District Court [2006] SCJ 282 at para 37, it was held that “Pre-trial bail is not a form of punishment to any individual. It is a form of partial and temporary restriction of his liberty with a view to disabling him against antisocial behavior.” Finding 16. In relation to the ground of objection, that is the risk of reoffending, it was confirmed that the Applicant has a clean record and is not on bail. Given the lucrative nature of the drug business, its proliferation and the nature of the evidence against the Applicant, I find that the danger of re-offending, if granted bail, is “plausible” [Re: Deelchand v DPP & Anor 2005 SCJ 215 citing Clooth v Belgium [1991] ECHR 71 (12 December 1991) at para 40].

17. Having found that there is a plausible risk, this does not entail that bail should be refused to the Applicant. There is an inherent duty upon this Court to assess whether conditions can be imposed to adequately curb the risks, so as to render the risks negligible as expounded in the case of Maloupe v The District Magistrate of Grand Port and Anor [2000 SCJ 223].

18. In Deelchand v The Director of Public Prosecutions and Others (supra), it was held that “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.”

6 19. In the case of Rangasamy M.N. v The D.P.P & Anor 2005 SCJ 249, the Court stated as follows:

“We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organized crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act”.

20. I find that stringent bail conditions can be imposed on the Applicant to minimise the risks identified by the Police. I therefore set aside the ground of objection and order that the Applicant be admitted to bail on the following conditions:

(i) The Applicant shall furnish a surety of Rs 20,000 in cash;

(ii) The Applicant shall enter into a recognisance of Rs 200,000 in his own name;

(iii) The Applicant shall report to the nearest police station to his place of abode everyday, once a day, between 06 00 hours and 18 00 hours;

(iv) The Applicant shall reside at a fixed address, which address shall be provided to the Police;

(v) A curfew order is imposed on the Applicant. The Applicant shall stay at his residential address, as provided to the Police, from 20 00 hours to 05 00 hours on a daily basis. In case of an emergency warranting him to go out, he must contact the Police to inform them of his predicament before proceeding outside during the hours of curfew and

(vi) The Applicant shall have in his possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that he may be contacted by the police, as and when required.

Shavina Jugnauth (Miss)

7 District Magistrate This 02 nd March 2020