Supreme Court of Mauritius, 2 mars 2020, 2020 BRC 18 – Police v Gavhy Wesley Bontemps

Police v Gavhy Wesley Bontemps

2020 BRC 18

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1579/19 BRC Cause Number 3277/19

In the matter of:

Police

v/s

Gavhy Wesley Bontemps

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING (POSSESSION OF DANGEROUS DRUG FOR THE PURPOSE OF DISTRIBUTION) in breach of Sections 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act. He has moved that he be admitted to bail and he was represented by Defence counsel, Me. J. Mootealloo at the bail hearing. The case for the prosecution was conducted by Police Prosecutor and the proceedings were held in Creole language for the benefit of the Applicant.

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

(1) Risk of re-offending (2) Risk of absconding

THE CASE FOR THE PROSECUTION

PS Gujadhur, 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. He went on to explain that on 4 th September 2019 at 01 30 hours following a search exercise carried out at the

place of Applicant, the police seized 17 aluminium foils containing dried leaves suspected to be synthetic drugs. He further explained that the sum of Rs 784 was secured which was suspected to be proceeds of drug dealing. The main enquiry officer went on to state that the value of the drug was Rs 11, 700 and that the Applicant had denied the charge but there was direct evidence against him. Doc X was filed showing that Applicant was born on record for 12 cognates and the officer explained that if granted bail, the Applicant will re-offend. Regarding the other ground of objection, the enquiry officer pointed out that Applicant had committed 2 breaches of conditions of release and the police believes that should he be granted bail, he will abscond. The court was informed that only the FSL report was missing to complete the police enquiry and he stated further that a reminder had been sent to the FSL but there was no indication as to when the report would be obtained. In cross examination the officer confirmed that the last offence committed by Applicant dated four and a half years ago and that he had denied the charge against him. He further confirmed that the last breach committed by Applicant dated back to the year 2015 and that Applicant had a fixed place of abode and that he had been on remand for the present case for 6 months now. The case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to depose under oath. He explained that he failed to report due to his ill health and that he will would comply with all bail conditions imposed by the Court and the case was then closed for the Defence.

Defence Counsel briefly submitted that both grounds of objections raised were based on apprehensions and invited the court to consider the time spend by Applicant on remand.

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 this ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking 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 and the paraphernalia (scale containing traces of leaves) in this case. 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 has denied the charge as confirmed by the main enquiry officer. I note that there is real evidence against him and that according to Doc X on record he is borne on record for cognate offences. 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”.

RISK OF ABSCONDING

The Court shall deal with the other 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. The Applicant explained under oath that he could not report as he was ill and his version has remained unchallenged as the prosecutor failed to cross examine him on that issue. I therefore find the fact that the Applicant might abscond is based only on an apprehension. Therefore, this ground cannot 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, I note that the Applicant has a fixed place of abode. Hence, the risk of him absconding in the face of such serious ties is negligible.

I have also taken into account the Applicant’s deposition under oath where he stated that he was prepared to abide by any conditions that the Court may impose. I further considered the fact that the main enquiry officer has stated has the police enquiry was not completed and that the FSL report was yet to be obtained. I note that the Applicant has been on remand for 6 months now and there is no indication as to when exactly the main case would be lodged against the Applicant.

I have carried out a balancing exercise and for all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion to grant bail to the Applicant on the following conditions:

(1) the Applicant should provide one surety of Rs 50,000 in cash (2) the Applicant should enter a recognizance of Rs 150,000 (in his own name) (3) the Applicant should report to the nearest police station daily between 06 00 hours and 18 00 hours (4) the Applicant should reside at a fixed place of abode (5) A curfew order is to be applicable on Applicant. He is to remain indoors daily from 19 00 hours to 05 00 hours (6) the Applicant should not re-offend whilst on bail

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