Supreme Court of Mauritius, 24 février 2020, 2020 BRC 4 – Police v Louis Steeve Le Desire

Police v Louis Steeve Le Desire

2020 BRC 4

IN THE BAIL AND REMAND COURT

Provisional Cause Number 862/2018 BRC Cause Number 3976/18

In the matter of:

Police

v/s

Louis Steeve LE DESIRE

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF CANNABIS FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (i) and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Defence counsel, Me.R. Valayden at the hearing. 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 absconding (2) Risk of re-offending

THE CASE FOR THE PROSECUTION

PS Sauteur, 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. The police officer went on to explain

that on 9 th November 2018 following a search exercise carried out at the dwelling of Applicant, ADSU officers found a transparent plastic bag hidden under a tile containing 290 cellophane wrappings containing suspected cannabis. The prosecution witness went on to explain that in the same bag leaves suspected to be cannabis were also secured and he explained that a further 6355 suspected cannabis seeds were also secured. PS Sauteur explained that an electronic balance, 3 cellophane sheets, 49 square pieces of cellophane were also found as well as the sum of Rs 21, 645, all suspected to be proceeds of drug dealing. The main enquiry officer stated that the value of the drug amounted to Rs 800, 000 and that there was direct evidence against the Applicant. The witness explained how the present case was a serious one and that Applicant could be tried before the Intermediate Court and if found guilty a severe penalty would be imposed by the Court. He went on to state that the severity of the penalty can cause the Applicant to abscond or fail to surrender to the police when needed. The police officer produced the Form 15 and Doc x (record of previous convictions) regarding the risk of re-offending. He explained that the Applicant had committed a similar offence in the past and having regards to the quantity of the drugs seized, the manner in which they were packed and hidden, he stated that the police has all the reasons to believe that if granted bail, the Applicant will commit similar offences. The Court was informed that the Applicant had partly confessed to the charge and that the police enquiry had been completed and that the case file has been sent for the drafting of the Form 100 since 11 th February 2020.

In cross examination PS Sauteur stated that the case file could be sent back for further enquiries and only then will the Form 100 be drafted and sent to the DPP’s Office. He explained that he could not say how much time will be required for the completed report to be sent to the DPP’s Office. PS Sauteur confirmed that the Applicant has never absconded, he has never breached any bail condition or re- offended whilst on bail in the past. Finally, the prosecution witness confirmed that the Applicant resides with his family and has family ties and the case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he elected to make a statement from the Dock. He went on to state that he would comply with all bail conditions imposed by the Court and the case was closed for the Defence.

Defence Counsel offered no submission in law or the facts and left the matter in the hands of the Court.

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 first ground of objection for bail, being given the seriousness of the offence and the probable heavy sentence to be imposed should applicant be found guilty, there is no doubt, a serious risk that he 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 save and except that the Applicant has children and lives with his family, no evidence was adduced as to his occupation and assets. I find that there is a risk of the Applicant absconding.

RISK OF RE-OFFENDING

Regarding the second ground of objection, 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 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 present case, the Applicant has partly confessed to the charge against him and as confirmed by the main enquiry officer there is real evidence against him. 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. I have noted that the Applicant has a previous conviction for cultivating cannabis plants. However,

he has never breached a condition of bail in the past. 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 he is prepared to abide by any conditions that the Court may impose. The conditions which I have considered are the duty to report to a police station, undertaking not to travel abroad, imposition of a surety and recognizance, residing at a fixed place of abode, a curfew order, informing police officers of his whereabouts, use of mobile phone for communication of movements and regular meetings with police officers as well as other conditions which could have been appropriate in such a case. 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.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs his 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, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible and lodge the formal charge against the Applicant so that he is tried within a reasonable time as guaranteed by the Constitution.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 24 th February 2020