Supreme Court of Mauritius, 25 février 2020, 2020 BRC 12 – Police v Leeroy Harold

Police v Leeroy Harold

2020 BRC 12

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1266/2019 BRC Cause Number 3241/19

In the matter of:

Police

v/s

Leeroy Harold

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES (Aiding and Abetting the author of a crime in the means of facilitating the said crime, to wit: to attempt to Possess Cannabis Resin for the purpose of distribution with an averment of trafficking) in breach of Sections 38 (3) of the Criminal Code, Sections 2 and 45 of the Interpretation and General Clauses Act coupled with Sections 30 (1) (f) (ii), 41 (3) (4) and 47 (2) (5) (a) (b) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Defence counsel, Me. N. Pillay at the bail hearing. The case for the Prosecution was conducted by State Counsel, Me Dawoodharry 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 (3) Interfering with witnesses

THE CASE FOR THE PROSECUTION

PS Luchmun, 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 12 th July 2019 following information received by ADSU officers, room 209 of Hotel Margarita was searched. The said room was being occupied by a Frenchman and ADSU officers seized 53 parcels of cellophane each wrapping substance suspected to be hashish. The officer went on to explain that on 13 th July 2019 during a control delivery exercise 25 cellophane parcels were purged and the foreigner explained that he had been instructed to deliver the parcel in front of Margarita Hotel. The main enquiry officer went on to explain that on the same day at 20 20 hours, the Applicant came in front of the said hotel on his motorcycle bearing registration number 5940 AC and was on the alert. After he left, a different motorcycle was seen outside the hotel and a certain Mr Gopaul came to collect the dummy parcel from the French National and was arrested. The Applicant came again in front of the hotel with his concubine Ms Marie Nicole Pascale Cangy and they were both arrested by the police. Upon questioning the Applicant replied “mo fine vine avek mo fam cerce ene parcel avec Gary Gopaul.”

In relation to the first ground of objection the officer explained that drug dealing was a lucrative business involving much money and should Applicant be granted bail, he would re-offend.

In relation to the second ground of objection the officer explained that drug trafficking was a serious offence which would be tried before the Assizes and the police had reason to believe that if Applicant is granted bail, he will not attend court.

In relation to the third ground of objection the officer went on to explain that the itemised bill was not yet obtained and upon being obtained, names of witnesses would be revealed and should Applicant be granted bail, he would interfere with them. The FSL report was also missing and application has been made to obtain a judge’s order. Further the officer explained that aa correspondence had been sent to Interpol in France as orders had been received from France to deliver drugs in Mauritius. The value of drugs secured amounted to Rs 2.325 million and Applicant had denied having knowledge that the parcel contained drugs and he explained that he had merely been following instructions from his concubine Ms Cangy.

In cross examination the main enquiry officer stated that he could not say when the report from Interpol and the FSL report would be received. He confirmed that the Applicant had a clean record and is not on bail and he further stated that both Co- Accused of Applicant have been granted bail. The enquiry officer further confirmed that Applicant had a fixed place of abode and family ties and had explained that he went on spot upon the instructions of his concubine. PS Luchmun stated that all the grounds of objection were mere apprehensions and he admitted that the Applicant had denied going to the hotel to get a parcel of hashish from a certain Gary Gopaul. 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 submitted briefly on the facts and stated there was no indication as to when the main case would be lodged against the Applicant. He further drew the attention of this bench to the fact that both Co-Accused in the present case have already been granted bail and moved that the Applicant be granted bail as well. State Counsel on the other hand merely left matters 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 above mentioned 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 a fixed place of abode, no evidence was adduced as to his occupation and assets. I do find that there is a risk of the Applicant absconding. However, I note that in cross examination from Defence Counsel, the enquiry officer stated that this ground of objection was a mere apprehension.

RISK OF RE-OFFENDING

Regarding the above mentioned 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 denied knowledge to the charge against him but however 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 clean record and has not offended whilst on bail. 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 INTERFERING WITH WITNESSES

I shall now turn to the above mentioned ground of objection raised by the police in relation to the present case, namely the risk of interference with witnesses. I find it apt to refer to the case of DEELCHAND V THE DIRECTOROF PUBLIC PROSECUTIONS AND OTHER S [2005 SCJ 215], where reference was made to an

extract of Neil Corre’s book “Bail in Criminal Proceedings” (1990), to express the most common manifestations where there is a risk of interference with witnesses, namely:

(a) the defendant has allegedly threatened witnesses; (b) the defendant has allegedly made admissions that he intends to do so; (c) the witnesses have a close relationship with the defendant, for example in cases of domestic violence or incest; (d) the witnesses are especially vulnerable, for example where they live near the defendant or are children or elderly people; (e) it is believed that the defendant knows the location of inculpatory documentary evidence which he may destroy, or has hidden stolen property or the proceeds of crime; (f) it is believed the defendant will intimidate or bribe jurors; (g) other suspects are still at large and may be warned by the defendant.

In the present case, the police have mere apprehensions that the Applicant might interfere with witnesses whose name might come up once the itemized bill is obtained following a judge’s order. I have considered the fact admitted by the main enquiry officer regarding the fact that the Applicant cannot influence the identities of those people whose names would be revealed once the itemized bill comes out. I therefore find that this ground of objection cannot stand.

I have further taken into account the Applicant’s statement from the dock that he is prepared to abide by any conditions that the Court may impose. After carrying out the required balancing exercise, I hold that the Constitutional Right of the Applicant to be at large outweighs the need for him to be in detention.

I therefore grant the Applicant bail on the following conditions:

(1) The Applicant is to furnish a surety in the sum of Rs 200, 000 in cash (two hundred thousand) (2) The Applicant is to enter into a recognizance of Rs 1,200,000 in his own name (one million and two hundred thousand) (3) The Applicant is to report to the nearest police station every day twice a day at 08 00 hours and 19 00 hours. (4) The Applicant is to reside at a fixed and permanent place of residence; as indicated by him (5) (i) It shall be the responsibility of the Applicant to be permanently equipped with a mobile phone, the number of which he shall communicate in advance to one or more Police officers nominated for that purpose; (ii) he shall ensure that the mobile phone is in good working condition and open for communication at all times; (iii) he shall ensure that the mobile phone is available solely and exclusively for the present monitoring purposes to enable the Police at any time to ascertain his movements and location and, if necessary, to direct him to be in attendance at any indicated spot.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 25 th February 2020