Supreme Court of Mauritius, 6 mai 2020, 2020 BRC 134 – Police v Gregory Noel Timothee Tron

Police v Gregory Noel Timothee Tron

2020 BRC 134

IN THE BAIL AND REMAND COURT

Provisional Cause Number 1517/2019 (Rose Hill)

In the matter of:

Police

v/s

Gregory Noel Timothee Tron

RULING

The Applicant stands provisionally charged with the offence of AIDING AND ABETTING THE AUTHOR IN THE COMMISSION OF AN OFFENCE -ATTEMPT TO POSSESS HASHISH (CANNABIS RESIN) FOR THE PURPOSE OF DISTRIBUTION WITH AN AVERMENT OF TRAFFICKING in breach of Section 38 (3) of the Criminal Code Act, Sections 2 & 45 of The Interpretation and General Clauses Act coupled with sections 30 (1) (f) (ii), 41 (3) (4) and 47 (2) (5) (a) of the Dangerous Drug Act. The Applicant has moved that he be admitted to bail and he was represented by Me. A. Toorabally at the bail hearing. The hearing for the Respondent was conducted by Senior State Counsel and the court proceedings were held in Creole language for the benefit of the Applicant. In light of the Covid 19 pandemic situation prevailing and the lockdown situation prevailing in Mauritius, all parties were present via video call and 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 following grounds:

• Risk of absconding • Risk of re-offending • Risk of interfering with witnesses and tampering with evidence

.

THE CASE FOR THE PROSECUTION

SI Seeburn, 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 26 th June 2019 upon the arrival of flight MK 045 from France Charles de Gaulle International Airport, ADSU and customs officers intercepted and arrested a French National passenger, Ms Souare and secured from her luggage 9.57 grams of leaf matter suspected to be cannabis and 2.85 grams of Hashish (cannabis resin). From her leggings 2 plastic parcels containing 2.01 kilo grams of a substance suspected to be cannabis resin were also secured and the main enquiry officer stated that the total value of the drug was estimated to be 6 million and thirty thousand Mauritian Rupees. The officer went on to explain that a control delivery exercise was set up and Ms Souare was in contact with her foreign contact and as instructed on the 2 nd July 2019, Ms Souare proceeded to Trianon Shopping Mall to the Mc Donald outlet with the concealed dummy parcel. The officer explained that the female foreigner took the parcel out of her bag and concealed same in the outlet’s toilet and at one point in time, the Applicant was in company of two of his friends entered the outlet and bought some snacks. One Seesurrun, one of the Applicant’s friend who had entered the outlet with him, alone proceeded to the female toilet and took delivery of the dummy parcel and as he was doing same, he was being supervised by a female police officer. He therefore left the parcel on the spot and proceeded outside to look for Ms Souare so that she could get the parcel for him. Since the latter was already outside and had ordered a taxi and was inside it, the said Mr Seesurrun approached her and told her to alight from the vehicle and she complied with the request. During their conversation, the police came on spot and intercepted them and at that particular moment the said Mr Seesarun’s two friends, including the Applicant were also present on the parking spot. The Applicant as well as his friends admitted to having been to the Ms Donald outlet on the material day but have denied being there to take delivery of the drugs. The Applicant has denied having had a conversation with Ms Souare but the main enquiry officer explained that after having been intercepted by the police and cautioned and questioned, the Applicant admitted to having been there to take delivery of the parcel but he has denied same in the defence statement he gave.

Regarding the 1 st ground of objection, Risk of absconding, the main enquiry officer explained that the value of the drugs exceeds Rs 6 Million and as the case is likely to be tried before the Assizes and the law provides for a heavy penalty, the police has strong apprehensions that the Applicant will abscond if granted bail.

Regarding the 2 nd ground of objection, Risk of re-offending, the main enquiry officer explained that drug transaction is a lucrative business and that furthermore the police had gone through the IT report regarding the Applicant’s phone and several

incriminating messages have been retrieved from which the police has averred that Applicant has been dealing with drugs prior to his arrest. The main enquiry officer explained that based on this the police has strong apprehensions that the Applicant if granted bail will re-offend.

Regarding the 3 rd ground of objection, Risk of interfering with witnesses and tampering with evidence, the main enquiry officer explained that the police enquiry was still ongoing and that on the 24 th February the police has applied for a Judge’s Order in respect of all the phones that have been secured in connection with the present case and following the itemised bill which will be obtained, there may be other evidence that may crop up and there may be other arrests which will be made. The enquiry officer went on to explain that if Applicant is granted bail, he may interfere with witnesses and tamper with evidence as the case has international ramification. The officer further stated that the police enquiry was still short of the FSL report, itemised bills and reports from the Interpol. The court was informed that the Applicant had a clean record and that he was not currently on bail.

In cross examination the main enquiry officer confirmed that the Applicant had denied the charge and that he had explained that it was his birthday on the day he was arrested. The officer confirmed that the Applicant did not personally talk to Ms Souare but he went on to explain that usually in the drug network several persons are involved and they all have specific tasks and according to him, the Applicant was on the lookout on that day. The main enquiry officer confirmed that that direct evidence to the effect that Applicant was on spot and that he forms part of a network. The main enquiry officer stated that he could not say when the formal charge would be lodged against the Applicant and he further stated that on spot, the Applicant resisted the arrest. The police officer confirmed that the Applicant had a fixed place of abode and that he had family ties. The officer stated that he does not know if Applicant was planning to abscond but that was a possibility and he confirmed that the Applicant is a hairdresser by profession. The main enquiry officer maintained that there was strong apprehension that Applicant will re-offend if granted bail based on the fact that while going through his phone, the police has come across so many messages incriminating the Applicant and showing he was in the drug business. The officer maintained that if granted bail the Applicant may interfere with persons whose name might be on the list of the itemised bill and that was a strong apprehension. The case was then closed for the prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and from the dock he stated that he would abide by all bail conditions imposed by the Court should he be granted bail. No defence witness was called and the case was then closed for the Defence.

Both Counsels for the Applicant and that for the Respondent offered brief submissions on the facts of this present case and on the principles of bail as established by the case law.

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 custodial 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 Applicant has a fixed place of abode and family ties. I have looked at the past conduct of the Applicant based on the reasoning that it would be indicative of what he may be capable of doing. I have also tried to make a reasonable projection of what the Applicant may do or may be tempted to do in the future bearing in mind the developments and circumstances surrounding his case. I have considered the fact that the police enquiry is still ongoing and has very much progressed and will be completed as soon the FSL report, the itemized billing for the phones secured and the report from Interpol are received. I note that an application for a Judge’s Oder is already under way. I have even considered the fact that Applicant has a clean record and was not on bail when he was arrested for the present case. In light of the direct evidence against the Applicant and the contacts that Applicant has in the drug business as apparent from the messages retrieved by the police from his phone, and the international ramification of the present case especially in France who can help him to travel abroad and take refuge outside our jurisdiction and further taking into account the means that can be obtained to effect payment in order to meet the expenses or organizing and carrying out the act of absconding, especially if it involves leaving the country 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. This ground of objection can stand.

RISK OF RE-OFFENDING

Regarding the second ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking being a lucrative business and the substantial value of the drugs secured in the present case, there is a serious risk of the Applicant being tempted to commit further offences. The more so when one that Applicant went on spot with his confederates and was privy to the conversation between the said Seesarrun and Ms Souare. I take note that under oath the main enquiry officer stated that there was direct evidence linking the Applicant with the business of drugs as “so many messages” regarding same have been retrieved from his phone which had been secured during the police enquiry. 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 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. In the present case, the Applicant has denied the charge against him and is of clean record and not 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”.

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. 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. I find that this ground of objection can stand.

RISK OF INTERFERING WITH WITNESSES AND TAMPERING WITH EVIDENCE

I shall now turn to the third ground of objection raised by the police in relation to the present case, namely the risk of interference with witnesses and evidence. I shall refer to the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS [2005SCJ 215], where reference was made to Neil Corre quoting an extract of his 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 apprehend that the Applicant might interfere with witnesses whose identities would be revealed once the itemized bills are obtained upon obtaining the Judge’s Order. The main enquiry officer explained that further incriminating messages were retrieved from Applicant’s phone regarding drug transactions. Replies from the Interpol are being awaited concerning these potential witnesses and if granted bail the police fear that Applicant with interfere with these people. I have considered that the fact that these witnesses have not yet given their statements and as the Applicant himself has denied the charge against him, I find that therefore, the risk of him interfering with the witnesses will bear much consequential effect. I therefore find that this ground of objection can stand.

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 and after finding that the delay so far in this case is not of an undue nature taking into account the complexity of the police enquiry, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible taking into account the amount of time spent by Applicant on remand so far and to lodge the formal charge against him so that he is tried within a reasonable time as guaranteed by the Constitution.

I am reminding the authorities that there are several pronouncements of the Supreme Court stressing the need for the prosecution authorities to adopt a fast track procedure in cases where defendants are the subject of pre-trial detention, as is the case before this bench today. (Re: Teeluckchand v District Magistrate of Riviere du Rempart [1989 SCJ 56] and Director of Public Prosecutions v Hurnam [2004 SCJ 153]).

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 6 th May 2020