Supreme Court of Mauritius, 22 juin 2020, 2020 MOK 1 – WOOZEERALLY B v POLICE

WOOZEERALLY B v POLICE

2020 MOK 1

Cause No: 513/20

THE DISTRICT COURT OF MOKA

In the matter of: Bye Tayub Woozeerally Applicant v

Police Respondent RULING

The applicant is provisionally charged with money laundering in breach of section 3(1) of the Financial Intelligence and Anti-Money Laundering Act. He has applied to be released on bail, but the respondent has objected to his request on the ground that he will abscond, commit other offences, and interfere with witnesses. He was legally represented by Mrs Atherton of Counsel during the hearing.

In support of the case for the respondent, the enquiring officer has explained that Bye Swaley Hosenally (a relative of the applicant) was arrested on 01 June 2017 before embarking on the aeroplane to Madagascar with USD 262,800 in cash. In addition, he has related how, on 29 April 2020, the suspect has made a statement to the police in which he has mentioned that the money was remitted to him by the applicant with instructions to transport same abroad.

I have considered all the evidence on record. I shall assess the nature of the evidence, and thereafter address each ground in the light of the evidence which has been adduced during the proceedings in Court.

The nature of the evidence

In analysing the evidence, a balancing exercise has to be carried out. Indeed, it was held in Labonne v Director of Public Prosecutions [2005 SCJ 38] that “the two conflicting interests which the law of bail seeks to reconcile are, 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 the criminal which he is suspected to be.”

I note that the case for the respondent is grounded on the evidence of an accomplice, but this does not mean that same is necessarily unreliable although such evidence must be treated with caution. I shall reproduce the ensuing passage in Director of Public Prosecutions v Marthe [2013 SCJ 386a] which supports the proposition that accomplice evidence cannot automatically be rejected as weak:

“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 be treated with care.”

I, however, note that the incident is alleged to have occurred on 01 June 2017, and that it is only on 29 April 2020 that the suspect has implicated the applicant without any reason to explain why it took him nearly three years to mention the alleged involvement of the applicant to the police. In Labonne, it was held that “only the essential circumstances affecting the quality of the evidence” should be assessed in determining the nature of the evidence. I consider that the unexplained passage of time, and the fact that the suspect may have an interest of his own to serve impact negatively on the quality of the evidence. In the circumstances, the nature of the evidence cannot be said to be strong such that the right to liberty of the applicant weighs heavier than the public interest.

The risk of absconding

I note that the enquiring officer has asserted that the applicant will abscond since he will eventually undergo a heavy custodial sentence as the offence with which he has been provisionally charged is serious. I remark that the applicant may not be sentenced to imprisonment in the event of a conviction bearing in mind that he does not have a criminal record. I also remark that he may not even be convicted in view of the strength of the evidence.

I also note that the enquiring officer has claimed that the applicant will escape as he travels abroad very often particularly to Madagascar where he has a place to reside. In addition, he has stated that the amount of money which has been secured shows that he is part of an international network. I do not see how the applicant will abscond to Madagascar through the normal channel because he is subject to a prohibition order. I concede, however, that he may escape by sea, but account has to be taken of the strength of the evidence which means that he may not have any interest to leave Mauritius illegally.

On the other side of the scale, the enquiring officer has admitted that the applicant has two “wives” (by which I understand that he is legally married to one, and has an extra-marital relationship with the other), and has four children. I also note that he has a fixed place of abode where he resides with his mother, and that he earns his living by selling clothes. Indeed, this shows that he has strong family and occupational ties. Importantly, he has never absconded in the past, and he has even travelled abroad several times during the past three years.

In the circumstances, the respondent has not demonstrated that there is a strong risk that the applicant will escape. In any event, strict reporting conditions may be imposed in order to ensure that any risk of absconding is maintained at an acceptable level.

The risk of committing other offences

I note that the enquiring officer has asserted that the respondent believes that the money which has been secured represents the proceeds of drug dealing such that the applicant will be tempted to commit similar offences because this activity is lucrative. I also note that he has mentioned that the applicant was summoned and questioned by the Commission of Inquiry on Drug Trafficking.

I remark that there is no evidence that the money which has been recovered comes from drug dealing. Indeed, no drugs have been secured on the applicant despite a search of his premises, and he has never been convicted of drug dealing. I also remark that the enquiring officer has attempted to suggest that the applicant is involved in drug dealing by asserting that he was summoned to provide explanations before the Commission of Inquiry on Drug Trafficking, but whatever evidence may have been given by any witness before the Commission cannot “be admissible against any person in any civil or criminal proceedings, except in the case of a witness charged with having given false evidence before the Commissioner or Commissioners” as provided under section 12(2) of the Commissions of Inquiry Act.

On the other side of the scale, the applicant does not have a criminal record which means that he does not have a propensity to commit illegal acts. In addition, he is unlikely to commit similar offences in case he has committed the present one because the nature of the evidence is reasonably weak, and I cannot see him taking the risk of detection by committing other offences. What is more is that he will not be tempted to commit similar offences since he has everything to lose in doing so as there is a reasonable prospect that he will not be prosecuted, or if he is, that the charge against him will be dismissed, in view of the strength of the evidence.

In the circumstances, the respondent has not shown that there is a strong risk that the applicant will commit other offences. In any event, a high surety can be

imposed in order to ensure that any risk of committing similar offences is kept at a negligible level.

The risk of interfering with witnesses

I note that the enquiring officer has claimed that the applicant will interfere with Irshad Teemul, another suspect in the investigation who has been arrested on 09 June 2020. I also note that he has stated that this suspect has been identified by the applicant, and that the latter will interfere with him since the enquiry with regard to this suspect has recently started.

I shall reproduce the following extract in Neeyamuthkhan v Director of Public Prosecutions [1999 SCJ 284a] which provides guidance on what exactly the respondent needs to demonstrate in order to substantiate this ground:

“Bail may be refused where there is a well-founded risk that the accused, if released, would take action to prejudice the administration of justice. The risk may involve interference with witnesses, warning other suspects, or the destruction of relevant evidence. A generalised risk is insufficient. The risk must be identifiable and there must be evidence in support.”

I consider that there is no evidence which has been adduced to demonstrate in what manner the applicant will interfere with the suspect which means that only a “generalised risk” has been identified by the enquiring officer. I also remark that the suspect is currently in custody such that it will be very difficult for the applicant to interfere with him in the event that he is released on bail. In addition, the fact that the investigation is ongoing is not a sufficient reason to deny bail to the applicant. Indeed, it was held in Deelchand v Director of Public Prosecutions [2005 SCJ 215] that “the exception does not apply simply because there are other police enquiries or merely because there are suspects who have yet to be apprehended.”

In the circumstances, the respondent has not demonstrated that there is a strong risk that the applicant will interfere with witnesses. In any event, a restraining order may be imposed in order to ensure that any risk of interfering with witnesses is maintained at an acceptable level.

I accordingly admit the applicant to bail on the condition that he (a) furnishes a surety in the sum of MUR 750,000, (b) enters into a recognisance in the sum of MUR 3,000,000, (c) resides at the address which he has given to the respondent and informs the respondent if there is any change, (d) does not contact (whether directly or indirectly) Irshad Teemul, and (e) reports to the nearest police station to his place of abode every day between 06 00 and 18 00.

Navish Jheelan Senior District Magistrate 22 June 2020