Supreme Court of Mauritius, 25 février 2020, 2020 BRC 8 – Police v Thierry Jonathan Lauricourt

Police v Thierry Jonathan Lauricourt

2020 BRC 8

IN THE BAIL AND REMAND COURT

Provisional Cause Number 138/2020 BRC Cause Number 462/20

In the matter of:

Police

v/s

Thierry Jonathan Lauricourt

RULING

The Applicant stands provisionally charged with the offences of (1) DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act coupled with GN 93 of 2019 and (2) SELLING SYNTHETIC CANNABINOIDS in breach of Section 30 (1) (d) (ii) and 47 (5) (a) of the Dangerous Drugs Act coupled with GN 93 of 2019. The Applicant has moved that he be admitted to bail and he was represented by Defence counsel at the bail 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 ground:

• Risk of re-offending

THE CASE FOR THE PROSECUTION

PS Valsada, 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 ground. The police officer went on to explain that on 25 th January 2020, following a search exercise carried out at the Applicant’s place, the police seized a plastic bag containing 101 aluminium foils containing suspected cannabinoids as well as the sum of Rs 100 suspected to be proceeds of

the sale of drugs. The officer went on to explain that the value of the drug seized amounted to Rs 70, 850 and that the Applicant had made a full confession to the charges. He went on to state that the FSL report was missing and that the Applicant had a clean record and had not re-offended whilst on bail.

In cross examination the main enquiry officer explained that the ground of objection was not a mere apprehension as Applicant did not provide any details of his employment and as such the police strongly believes that should Applicant be granted bail, he will re-offend to recover the money he has lost. 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 RE-OFFENDING

Regarding the sole 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 confessed to the charges 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, PAMPLEMOUSSE S (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 is not on bail for other cases. However, I have borne in mind that there is no evidence on record to show that the Applicant has a fixed of abode and family ties so that although there is a risk of the Applicant re-offending, the Court can consider whether conditions can be imposed on the Applicant to render the risk negligible. (RE: MALOUPE VS DISTRICT MAGISTRATE OF GRAND PORT). I have considered whether 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. Moreover, regular reporting to the police station will enable the police to properly monitor the Applicant’s whereabouts and will act as a deterrent for the Applicant from absconding or re-offending. I therefore find that the Applicant’s right to liberty outweighs any objection raised by the police in support of his continued detention.

In the circumstances, I set aside the objection raised by the police in this case. I order that the Applicant be released on bail, pursuant to the Bail Act, under the following conditions:

(i) the Applicant should provide a cash surety of Rs 150,000; (ii) the Applicant should enter a recognizance in his own name of Rs 200,000; (iii) the Applicant should report to the police station nearest his place of residence daily between 6 a.m. and 6 p.m.; (iv) the Applicant should leave his contact details with the police and leave his phone on at all times to be contacted upon by the police if necessary (v) the Applicant should not re-offend whilst on bail

B. PRAYAG-RAJCOOMAR (Mrs)

Ag. Senior District Magistrate This 25 th February 2020