Supreme Court of Mauritius, 30 avril 2020, 2020 BRC 78 – Police v Marc Jean Marie Celestin

Police v Marc Jean Marie Celestin

2020 BRC 78

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1714/2019 (Grand Port)

In the matter of:

Police

v/s

Marc Jean Marie Celestin

RULING

The Applicant stands provisionally charged with the offences of DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES: POSSESSION OF HEROIN FOR THE PURPOSE OF SELLING WITH AN AVERMENT OF TRAFFICKING in breach of Sections 30 (1) (f) (ii), 41(3) (4), 47(2) (5) (a) (b) of the Dangerous Drug Act. The Applicant has moved that he be admitted to bail and he was represented by Me. C. Baboolall at the bail hearing and the hearing for the prosecution was conducted by Senior State Counsel. The proceedings were held in English language and in light of both the Covid 19 pandemic situation and the lockdown situation prevailing in Mauritius, all parties were present via video call and they had no objection that the matter be heard via video call and for all documents to be communicated electronically.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of:

• Risk of absconding • Risk of re-offending

THE CASE FOR THE PROSECUTION

PS Bonobally posted at ADSU Rose Belle, the main enquiry officer in this case 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 20 th November 2019 following an undercover operation by ADSU officers, the Applicant was arrested at Glen Park, Vacoas in possession of a black adhesive in which was enclosed a transparent plastic parcel containing a certain quantity of powder suspected to be heroin. The officer went on to state that the gross weight of the parcel was 101.6 grams and that the value of the drug was one million five hundred and twenty- four thousand rupees. Upon arrest the main enquiry officer explained that the Applicant stated that he was given the drugs for delivery. The court was informed that the Applicant was on bail for two offences, amongst which one for a drug offence and he was borne on record for non-cognate offences. Doc A (Memo PPO) and Doc X (the record of previous convictions of the Applicant) were filed via WhatsAap. The main enquiry officer explained that being given the documents on record and the fact that the value of the drugs secured amounts to a huge amount, the police strongly believes that if Applicant is released on bail, he is likely to abscond. In relation to the second ground of objection, the main enquiry officer explained that during the course of the enquiry, the Applicant had admitted seizure of the drugs and that clearly indicates that if granted bail, the Applicant will re-offend. The main enquiry officer informed the court that the police enquiry was still ongoing and that the FSL report was still being awaited.

In cross examination the main enquiry officer explained that the Applicant had confessed to “possession” of the drugs but has denied the averment of “trafficking” and he confirmed that no paraphernalia was found in this case. The officer confirmed that the Applicant had both a fixed place of abode as well as family ties and the officer confirmed that the Applicant was a mechanic by profession. The main enquiry officer explained that he could not say when the formal charge would be lodged against the Applicant and he confirmed that the latter had never breached any condition of release in the past. The main enquiry officer maintained that there was strong apprehension that if granted bail, the Applicant will abscond and re-offend. 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 will comply with all bail conditions imposed by the court. The case was then closed for the Defence.

Defence Counsel briefly submitted briefly and stated that the grounds of objections were mere apprehensions and that bail conditions could be imposed by the court. The State Law Officer offered a brief reply in submissions and reminded the court of the significant amount of drug secured and the reply of Applicant upon arrest that he was about to deliver the drugs. State Counsel pointed out that the case was a complex one and the enquiry was not completed and that the FSL report was

needed. Reference was made to the cases of Deelchand and Hurnam and the prosecution submitted that bail should not be granted to the Applicant.

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

The Court shall deal with the first ground of objection raised by the police namely that there is a likelihood that the Applicant could abscond if released. I shall refer to the case of LABONNE (JV) VS DIRECTOR OF PUBLIC PROSECUTIONS [2005 SCJ 38], whereby it has been averred as follows:

“the seriousness of the offence or the likelihood of the suspect being charged with a serious offence is obviously just a consideration to be weighed in the balance and not by itself a ground for refusing bail”.

Therefore, the very fact that the Applicant might eventually face a heavy penalty if he is found guilty for the present offence, is not a reason in itself to justify his detention. The Court has further considered the principle stated in the case of WEMHOFF V GERMANY [1968 ECHR 2] namely that:

“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.”

The Applicant is borne on record albeit for non-cognate offence but he was on bail for a drug related offence when he was arrested in the present case. I note that Applicant has family ties and he also has a fixed place of abode. I have considered the fact that Applicant is likely to be charged with a serious offence before the Assizes and if found guilty he will face a heavy penalty. The Court has further considered the risks of the Applicant’s absconding, namely “(…) his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted may either confirm the existence of a danger of flight or make it appear so small that it cannot justify detention pending trial.” (RE: NEUMEISTER VS AUSTRIA [1968 1 ECHR 91] .

In the present case, further, bearing in mind that Mauritius is a small island having other islands as neighbours and that it would be impossible for our authorities to keep the whole of the shores in Mauritius under constant surveillance, there is an increased responsibility on this court, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see that justice is not baffled when Accused parties awaiting trial simply leave the country by hiring powerful boats as

has been the case in the past. (Re: The Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]). Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible. For all these reasons, I am satisfied that there is a serious risk of Applicant absconding if he is granted bail. I therefore find that the first ground of objection succeeds.

RISK OF RE-OFFENDING

Regarding the second ground of objection, there is no doubt that drug dealing 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, in this case over Rs 1.5 million. Taking into account that Applicant has nothing more to lose, 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 DISTRICTMAGISTRATE OF GRAND PORT [2000 MR 64]. In the present case, the Applicant has denied the charge against him and as confirmed by the main enquiry officer there is real police 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 borne in mind that even if 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 fact that the main enquiry officer stated that the police enquiry was still ongoing and the FSL report, a vital document for a case of this mature is yet to be received by the authorities. I have further considered the statement from the dock of Applicant to the effect that he is prepared to abide by all conditions imposed by the court.

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. The second ground therefore succeeds.

I find it apt to refer to the case of Rangasamy M.N v D.P.P & Anor [2005 SCJ 249] where the Court had this to say:

“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.”

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 lodge the formal charge against the Applicant without undue delay so that he is tried within a reasonable time as guaranteed by the Constitution.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 30 th April 2020