Supreme Court of Mauritius, 21 mai 2020, 2020 BRC 195 – DC Grenade v Police

1 DC Grenade v Police

2020 BRC 195

Provisional Cause Number 1171/20 (Port-Louis (South)) BRC Cause Number – THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Darren Christopher Grenade v/s Police RULING

Introduction

1. The Applicant stands charged with the offence of drug dealing: possession of synthetic cannabinoids for the purpose of distribution in breach of sections 30(1)(f)(ii) and 47 (5)(a) of the Dangerous Drugs Act coupled with GN 93/2019. He has been on remand since the 13 th February 2020 and his Counsel, Me Joyram, appearing together with Me Hawoldar, has moved that he be admitted to bail. Me Thakoor appeared for the Respondent, assisted by PS Vythelingum.

2. Facts and circumstances of the case

On the 05 th January 2020, at 18 00 hours, the Police searched one Mahesh Jhugroo’s house, found at GRNW, and secured a carton box, containing the following:

(a) Two glass containers with a significant quantity of suspected synthetic cannabinoids; (b) Another glass container bearing traces of suspected synthetic cannabinoids; (c) A tin container bearing traces of suspected synthetic cannabinoids;

2 (d) A white plastic container, bearing traces of suspected synthetic cannabinoids and containing three tablets and fragments of the same tablet, with no labeling, as well as a blistered pack, with three tablets, each labeled “201”; (e) A plastic pint with a cap, labeled “Acetone Onyx Bricolage”, suspected to be acetone, which is a precursor; (f) One hundred and forty-nine squarely cut pieces of black plastic; (g) A plastic funnel; (h) An electronic scales, labeled “Camry”; (i) A plastic container with two half cut blades, secured with black tape and (j) Six sealed green tea boxes, each labeled “Twinings”.

Items (e) to (j) are suspected to be used for the preparation and wrapping of dangerous drugs.

The said Mahesh Jhugroo was cautioned and stated the following: “ene camarade ki prepare boule chimique ek ca bane zafer la cot moi.” He incriminated the Applicant as the friend in question.

The Applicant has denied the charge and the value of the drugs secured is Rs 340,000.

Case for Respondent

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

(i) Risk of absconding (ii) Risk of reoffending

4. In support of the first ground of objection, PS Naraidoo stated that the Applicant is likely to be charged with a serious offence before the IC, for which he will face a heavy penalty, if found guilty. The Police believe that he will abscond if granted bail, through fear of such penalty.

5. As far as the second ground of objection is concerned, it is the contention of the Police that, given that drugs is a lucrative business, the Applicant will indulge

3 anew in similar transactions, should he be admitted to bail. It came out that he has a clean record and is not on bail.

6. It was confirmed that the enquiry is short of the FSL report only. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

7. From the dock, the Applicant stated that he would abide to all conditions imposed, if released on bail.

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 –

(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 –

4 (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).

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;

5 (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 Nature of the evidence

16. It was held in Maloupe v The District Magistrate of Grand Port [2000] SCJ 223] that in an application for bail, the Court should not examine “…the precise evidence available to the police and to conclude as to whether it amounts to a prima facie case… Witnesses in the course of the hearing of an application for bail should only be allowed to depone as to the nature i.e. the kind of evidence available (including external circumstances which have a bearing on its quality…”

17. Without delving into the merits of the case or making a detailed evaluation of the available evidence, this Court bears in mind that the evidence against the Applicant comes from a self confessed accomplice. It will be for the Trial Court, and not this Court, to assess the credibility of that self confessed accomplice, as expounded in the cases of DPP v P Sathebajee 2019 SCJ 8 and S Dookhit v The District Magistrate of Pamplemousses, District Court, Pamplemousses 2011 SCJ 101.

18. For the purposes of the present bail application, on the issue of the evidence available against the Applicant emanating from the self confessed accomplice, it was held in DPP v Marthe 2013 SCJ 386 a that :

“The fact that the evidence against an applicant for bail comes from a self- confessed accomplice does not necessarily mean that it is weak or unreliable. It cannot be overlooked that in drug transactions involving more than one person, some of the best evidence against traffickers can and does come from accomplices. The fact remains that Magistrates and Judges have very often convicted accused parties based on the sole evidence of an accomplice after having given themselves the appropriate warning that accomplice evidence is to

7 be treated with care.”

19. It was further held in Marthe (supra) that:

“Indeed, if an accused has denied the charges pending against him, the Magistrate may take that into consideration. But, the denial of a charge has to be assessed in the light of the strength of the evidence available against the accused by the prosecution. If the evidence of the prosecution is strong, the denial is neither here nor there. If the evidence of the prosecution is so weak as to be almost incapable of sustaining the charge against the accused at the subsequent trial, then the Magistrate may weigh the denial of the accused in the balance before deciding to reject the objection taken by the police.”

20. Based on the above, I find that the nature of the evidence against the Applicant is strong. Analysis of the grounds of objection 21. As far as the first ground of objection is concerned, that is the risk of absconding, I have considered the personal circumstances of the Applicant and that he has no history of absconding. In the case of Neumeister vs Austria (1968) 1 ECHR 91 (27 JUNE 1968) at para 10, the Court had this to say: “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.” The Applicant has family ties, a fixed address, was working at the time of his arrest and has never jumped bail in the past. I further find that the seriousness of the offence is only a consideration to be weighed in the balance and not by itself a ground for refusing baiI. (Re: Labonne (JV) vs Director of Public Prosecutions (2005) SCJ 38). Therefore, I find that the very fact that the Applicant might eventually abscond as he is likely to face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. As such, the first ground of objection raised by the police is based on a mere apprehension only, and as such, fails.

22. In relation to the second ground of objection, that is the risk of reoffending,

8 considering the value of drugs involved in the present case, the nature of the evidence against the Applicant, and drug dealing being a lucrative business, I find that there is indeed a high risk that the Applicant might indulge anew in such transactions should he be released on bail. The present ground therefore succeeds after considering the following authorities:

(a) In Deelchand v The Director of Public Prosecutions & Ors [2005] SCJ 215 at para 5.8, it was held that : “The sentence expected in case of conviction is also a relevant consideration because of the greater risk that the offender may think he has nothing to lose by offending whilst on bail. The extent to which the offences which the applicant is suspected to have committed are lucrative should also be considered as the temptation, in case the applicant is guilty, that he may wish to make as much money as possible whilst on bail, is likely to be greater.” (b) In Islam (Supra) at para 32, it was held that: “Thus, somebody who is admitted to bail, who has been able to purchase – so to speak – his freedom by some monetary condition, walks out of the court- room, free from any type of effective control over his movements or his activities other than presumably reporting to the nearest police station twice a day. In between, where he goes, under whose influence he falls, with whom he associates himself to pursue what design is left to himself.” (c) In Hossen v District Magistrate of Port Louis [1993] MR 9, it was held that : “Everyone knows that the consumption of certain drugs, like any other vice one may think of, is never likely to disappear completely from the face of the planet and that, at times, it may not be reasonable to insist on the detention of suspects of a certain type. But when, on the contrary, we are faced with a proliferation of drug consumption, or a resurgence of this scourge which can only result in the corruption and degradation of the country’s youth in particular, then the Courts have the duty and the responsibility to protect the public against every person who is involved in any activity that is likely to facilitate or encourage the drug trade”. 23. Having found that the second ground of objection has been substantiated, this Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks identified, so as to render such risks negligible as

9 expounded in the case of Maloupe (Supra). In Deelchand (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.”

24. The circumstances of the present case are such that no conditions can be imposed to reduce the risks that have been identified. As such, this Court declines to exercise its discretion in favour of the Applicant and finds that his continued detention is warranted. The present application is, therefore, set aside.

25. It was confirmed that the enquiry is short of the FSL report only. As such, the Prosecution should lodge the formal charge against the Applicant as soon as possible, so that he can be tried within a reasonable time as guaranteed by the Constitution.

26. Based on Section 5 (3) of the Constitution and the observations made by the Court in Islam (Supra) at para 38 (5) and in Hurnam (supra) at para 15, I order that if a formal charge is not lodged against the Applicant by latest the 20 th

July 2020, the Applicant shall be admitted to bail on the following conditions:

(i) The Applicant shall furnish a first surety of Rs 200,000 by bank cheque;

(ii) The Applicant shall furnish a second surety of Rs 300,000 by bank cheque;

(iii) The Applicant shall enter into a recognisance of Rs 500,000 in his own name;

(iv) 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;

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

(vi) 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

10 out, he must contact the Police to inform them of his predicament before proceeding outside during the hours of curfew and

(vii) 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 and

27. The case is fixed Pro-Forma to the 20 th July 2020.

Shavina Jugnauth (Miss) District Magistrate This 21 st May 2020