Supreme Court of Mauritius, 27 février 2020, 2020 BRC 52 – JFJ Jacquette v Police

1 JFJ Jacquette v Police

2020 BRC 52

Provisional Cause Number 306/19 (Upper Plaines Wilhems (Curepipe)) BRC Cause Number 820/19 THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Jean Francois Jason Jacquette v/s Police RULING

Introduction

1. The Applicant stands charged with the offences 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 under Count I and money laundering under the Dangerous Drugs Act in breach of sections 39(1)(a) and 47(5)(a) of the Dangerous Drugs Act under Count II. He has been on remand since the 07 th

March 2019 and his Counsel, Me Glover S.C, appearing together with Me Seebaruth, has moved that he be admitted to bail. Me Bookhun appeared for the Respondent, assisted by PS Appadoo.

2. There was a previous bail motion heard on the 15 th July 2019, which was set aside on the 25 th July 2019. A motion for fresh bail hearing, on the ground of delay, was made on behalf of the Applicant, which motion was not resisted by the Respondent. The present bail motion was subsequently heard on the 24 th

February 2020.

3. Facts and circumstances of the case

2 On the 28 th February 2019, the Police searched the Applicant’s house, found at Club de Chasse, Mare Longue, and secured a first plastic sachet with a certain quantity of cannabis, a second plastic sachet with a certain quantity of cannabis and a piece of paper wrapping a certain amount of cannabis. Upon being questioned, the Applicant stated that it was cannabis left after the sale of other cannabis. The Police also secured the sum of Rs 788,000 and a money counting machine V30, in its pouch. Upon being questioned, the Applicant stated that the money was the proceeds of sales of cannabis and that the apparatus was used for counting money. The value of the drugs secured is Rs 2,275.

Case for Respondent

4. PS Vydelingum, of ADSU Rose-Belle, 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

5. In support of the first ground of objection, PS Vydelingum stated that there is a serious charge against the Applicant and it is likely that he will be prosecuted before the IC, where he will face a heavy penalty if found guilty. The Police believe that he will abscond if granted bail, through fear of such penalty.

6. As far as the second ground of objection is concerned, it is the contention of the Police that the facts and circumstances of the present case show that the Applicant is involved in the drugs business, which is a lucrative one. As such, the Police believe that he will indulge anew in such transactions, if released on bail. It was confirmed that the Applicant is borne on record for non-cognate offences (Doc X) and is on bail for non-cognate offences (Doc A).

7. It was confirmed that the enquiry has been completed and the case file sent anew to superior officers, after queries have been cleared. The main EO was duly cross examined by Learned Senior Counsel for the Applicant.

Case for the Applicant

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

The Law

9. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

10. 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.”

11. 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 –

(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 –

4 (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).

12. 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;

(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.

13. 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.”

14. 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.

15. 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.”

16. 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.”

Analysis of the grounds of objection 17. 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

6 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.” 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 offences, 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.

18. In relation to the second ground of objection, that is the risk of reoffending, it was confirmed that the Applicant is borne on record for non-cognate offences (Doc X) and is on bail for a non-cognate offence (Doc A). Given the lucrative nature of the drug business, its proliferation and the nature of the evidence against the Applicant, I find that the danger of re-offending, if granted bail, is “plausible” [Re: Deelchand v DPP & Anor 2005 SCJ 215 citing Clooth v Belgium [1991] ECHR 71 (12 December 1991) at para 40].

19. Having found that there is a plausible risk, this does not entail that bail should be refused to the Applicant. There is an inherent duty upon this Court to assess whether conditions can be imposed to adequately curb the risks, so as to render the risks negligible as expounded in the case of Maloupe v The District Magistrate of Grand Port and Anor [2000 SCJ 223].

20. In Deelchand v The Director of Public Prosecutions and Others (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.”

21. In the case of Rangasamy M.N. v The D.P.P & Anor 2005 SCJ 249, the Court stated as follows:

“We consider that judicial officers in Mauritius who have first-hand knowledge of the prevailing local conditions regarding law and order and organized crime should have a margin of appreciation in exercising their discretion and deciding on the need for a detainee to be admitted to bail, taking into account all the public interest grounds for refusing bail listed in section 4 of the Act”.

On the issue of delay 22. Learned Senior Counsel for the Applicant emphasised on the fact that there has been undue delay in the present case, in so much as the main EO stated, on the 22 nd October 2019, that the enquiry had been completed, and up to now, the case file has not been sent to the ODPP.

23. The European Court of Human Rights has held, in relation to cases involving pre-trial detention of a person accused of drug trafficking, that “such alleged offences were of a serious nature…it emphasised, nonetheless, that the “existence of a strong suspicion of the involvement of the person concerned in a serious offence, while constituting a relevant factor, cannot alone justify a long period of pre-trial detention.” [Eur. Court HR, case of Van Der Tang v Spain, judgment of 13 July 1995] – referred to by the Learned Judges in the case of Seewoochurn K M v The Commissioner of Police & Ors 2019 SCJ 189.

24. In Hurnam v The State [2004 PRV 53], the Judicial Committee of the Privy Council stated the following: “the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights.”

25. What is a long period of pre-detention depends upon individual jurisdictions. However, the Human Rights Commi ssion has held that what constitutes “reasonable time” is a matter of assessment for each particular case. [Re: Communication no. 336/1988, N. Fillastre v Bolivia (view adopted on 5 November 1991), as referred to in the case of Seewoochurn (Supra).”

26. In Seewoochurn (supra), the Learned Judges held that “…a balance must be struck between, on the one hand, the need for the applicant’s continued pre-trial detention and, on the other hand, his constitutional right to personal liberty and

8 to the presumption of innocence. Despite the applicant’s prolonged pre-trial detention, the police have not given any serious and precise indication as to when they will complete the enquiry and intend to lodge the formal charge.”

27. In the present case, it was the Respondent’s contention that there were queries, which had to be cleared, before the file was sent anew to superior officers on the 19 th February 2020. However, this does not justify the undue delay, which has occurred in the present case.

28. Based on Section 5 (3) of the Constitution and the above authorities, I find that stringent bail conditions can be imposed on the Applicant to minimise the risks identified by the Police. I therefore set aside the grounds of objection and order that the Applicant be admitted to bail on the following conditions:

(a) The Applicant shall furnish a first surety of Rs 150,000 by bank cheque;

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

(c) The Applicant shall enter into a recognisance of Rs 1,000,000 (in his own name);

(d) The Applicant shall reside at a fixed address, which he shall provide to the police. He shall not move to another address without the prior consent of the District Magistrate of the court concerned;

(e) 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;

(f) The Applicant shall inform the police of his daily movements when he reports at the police station;

(g) The Applicant shall endeavour not to be in communication with any person, other than the authorities, in connection with the present case either in person or by means of any technology such as phone, email, whatsapp, messenger, facebook, twitter or any other social media platform;

9 (h) 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; and

(i) The Applicant shall:

(1) be permanently equipped with a mobile phone, the number of which he shall communicate in advance to one or more ADSU officers nominated for that purpose;

(2) ensure that the mobile phone is in good working condition and open for communication at all times and

(3) ensure that the mobile number is available solely and exclusively for the present monitoring purposes to enable any ADSU officer at any time to ascertain his movements and location and if necessary to direct him to be in attendance at any indicated spot.

Shavina Jugnauth (Miss) District Magistrate This 27 th February 2020