Supreme Court of Mauritius, 10 juillet 2020, 2020 PL2 55 – Police v Genave

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Police v Genave

2020 PL2 55

POLICE v GENAVE

Provisional CN 3462/2020

IN THE DISTRICT COURT OF PORT LOUIS (Division II)

In the matter of:-

Police

v.

Maxwell Genave

RULING

Applicant stands provisionally charged with the offences of: – Drug Dealing: Possession of Cannabis for the purpose of distribution in breach of sections 30(1)(f)(i) and 47(5)(a) of the Dangerous Drugs Act [“the DDA”]; – Drug Dealing: Possession of Cannabis resin (Hashish) for the purpose of distribution in breach of sections 30(1)(f)(ii) and 47(5)(a) of the DDA; – Money Laundering in breach of sections 39(1)(a)(2), 47(5)(a) and 48 of the DDA; – Possession of prohibited goods in breach of sections 156(1)(c)(iii) and 156(2)(a)(ii) of the Customs Act coupled with GN 242/2015 of the Consumer Protection (Price and Supplies Control) Act.

At the bail hearing, Me. Teeluckdharry appeared for Applicant, and Me. Bissessur, State Counsel, conducted the case for Prosecution, in the presence of WPC Pokhun.

Me. Teeluckdharry informed the Court that proceedings can be held in English and Creole.

Prosecution contended that Applicant should not be admitted to bail on the following grounds: – risk of interfering with witnesses; – risk of absconding; and – risk of reoffending.

As regards the risk of interfering with witnesses, section 4(1)(a)(iii) of the Bail Act 1999 (Act 32/1999) [“the Bail Act”] is relevant. It provides that a Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person.

In Deelchand v The Director of Public Prosecutions and others [2005 SCJ 215], it was observed that to satisfy the Court that there is a serious risk of interference with a witness, satisfactory reasons, and evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by applicant.

The Court in Deelchand (supra) also cited the book “Bail in Criminal Proceedings” (1990) by Neil Corre, where it was pointed out that the risk that the applicant may “interfere with witnesses or otherwise obstruct the course of justice” is “an important exception to the right to bail because any system of justice must depend upon witnesses being free of fear of intimidation or bribery and upon evidence being properly obtained”. The Court quoted the following excerpt from the said book: “The exception’s most common manifestations are in cases where: (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. The exception does not apply simply because there are further police enquiries or merely because there are suspects who have yet to be apprehended”.

Here, the Court is of the view that the mere fact that the investigation is still in progress or further statement ought to be recorded from Applicant would not per se establish that there may be other suspects involved and Applicant would interfere with them if he is released on bail.

As regards the ground of absconding, section 4(1)(a)(i) of the Bail Act provides that the Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to fail to surrender to custody or to appear before a Court as and when required.

Here, the Enquiring Officer, explained in his testimony that there is a risk that Applicant may abscond given that he is provisionally charged with serious offences and the sentences applicable to such offences are severe. True it is that, heavy penalties are provided under the DDA for drug dealing and money laundering offences, and under the Customs Act for possession of prohibited goods. Under the DDA, section 30(1)(f)(i) provides for a fine not exceeding 1 million rupees and penal servitude for a term not exceeding 25 years where the drug dealing offence involves Cannabis, section 30(1)(f)(ii) provides for to a fine not exceeding 1 million rupees together with penal servitude for a term which shall not be less than 5 years and not more than 25 years where the drug dealing offence involves Cannabis Resin, and section 39(1)(a) provides for a fine not exceeding one million rupees and imprisonment for a term not exceeding 20 years for the offence of money laundering. The Customs Act also provides for a heavy fine under section 156(2)(a)(ii) which shall, where the value of the goods exceeds Rs.1500, be 3 times the amount of duty, excise duty and taxes on those goods or Rs.20000, whichever is the higher. However, the Supreme Court pointed out in Labonne v The D.P.P. and The District Magistrate of Black River [2005 SCJ 38] that the seriousness of the offence is only one of the considerations to be taken into account, and will not by itself provide adequate ground for refusing bail. During his submission, Counsel for Prosecution referred to the fact that Applicant deals with foreigners given that he drives them around the island. He also referred to the statement made by Applicant that he envisaged to travel to Reunion when the latter explained the presence of euros in his possession which he stated were given by his sister for his 25 years of marriage. Nevertheless, the Enquiring Officer conceded, during his cross-examination, that Applicant has family ties and a fixed place of abode. He also conceded that Applicant works as a musician, driver and guide. Applicant’s family and occupational ties, and his fixed place of abode are relevant considerations, in the opinion of the Court, to justify that he is unlikely to abscond. Besides, the Enquiring Officer confirmed that Applicant never tried to escape custody since his arrest or jumped bail in the past. In the circumstances, the Court is of the view that the risk of absconding is not sufficiently substantiated.

As regards the risk of reoffending, section 4(1)(a)(ii) of the Bail Act is of relevance. It provides that a Court may refuse to release a defendant or a detainee on bail where it is satisfied that there is reasonable ground for believing that the defendant or detainee, if released, is likely to commit an offence, other than an offence punishable only by a fine.

The Supreme Court in Deelchand (supra) underlined that the risk of offending must be a real one and there must be adequate reasons to explain its existence. The Supreme Court also cited with approval the case of Clooth v Belgium [1991] ECHR 71 (12 December 1991) where it was said that the danger of a serious offence being committed by an applicant whilst on bail should be a plausible one.

In the present case, Counsel for Prosecution invited the Court to consider the record of convictions of Applicant, filed and marked as Doc X, which shows that the latter was convicted in the past for a cognate offence. Whereas Counsel for Applicant invited the Court to consider the fact that the said cognate offence is dated back to 2005. The Court notes that the said conviction is dated more than 10 years ago and Applicant was granted Free Pardon by the President of the Republic in 2017, and as such, the record of conviction will not per se provide adequate ground for refusing bail.

However, as mentioned above, drug dealing and money laundering offences attract heavy penalties. In the case of Deelchand (supra), the Supreme Court observed that the sentence expected in case of conviction is a relevant consideration because of the greater risk that the offender may think he has nothing to lose by offending whilst on bail. Here, the prospect of heavy penalties which Applicant would incur, should he be found guilty, is a relevant consideration.

In addition, the Enquiring Officer explained, during his examination in chief, that the house of Applicant was searched and that drugs amounting MUR.4,740/-, cellophane sheet, electronic scale, boxes containing “Roll you own cigarette” papers, and a large sum of money , to wit, MUR.1,336,075/- together with EUR.570 and USD.60, were secured. As explained by the Supreme Court in the case of Deelchand (supra), the nature of the evidence is to be related to the risk of reoffending where, having regard to its type and to factors affecting its quality, it is either so patently strong or weak as to have a bearing on that risk. If the evidence against Applicant appears strong, he is more likely to think that he has nothing to lose by reoffending; and if the evidence appears weak to him, he will be less likely to take the risk of detection upon reoffending. Here, on the one hand, Prosecution seems to rely on real evidence secured at the place of Applicant to support the charges. On the other hand, Applicant seems to rely on his own written statement given to the police, the testimonial evidence of his son, and on documentary evidence, consisting of photographs filed and marked as Doc A, to disprove the said charges. Without probing into the details of the evidence, the Court is of the view that the nature of the evidence secured by Prosecution, at the house of Applicant and in his presence, appears to be strong, and as such, the risk of reoffending cannot be excluded.

Moreover, Counsel for Applicant invited the Court to consider the imposition of stringent bail conditions if need be. Applicant also made a statement from the dock that he will abide by the conditions.

In that respect, the rationale of the law of bail at pre-trial stage as explained in Maloupe v District Magistrate of Grand Port i.p.o. Director of Public Prosecutions [2000 SCJ 223] is of relevance. The Supreme Court observed that a person should normally be released on bail if the imposition of the conditions reduces the 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; and when the imposition of the conditions is considered to be unlikely to make any of the risks negligible, then bail is to be refused. In Deelchand (supra), the Supreme Court pointed out that security appears applicable to all the risks as it may be an incentive to an applicant to appear for trial, to behave whilst on bail and to refrain from interfering with witnesses, or tampering with evidence.

Here, the Court is of view that the risk of reoffending can be reduced by the imposition of conditions such that it becomes negligible having regard to the weight which the presumption of innocence should carry in the balance. The Court also notes from the testimony of the Enquiring Officer that there is no indication as to when Applicant is going to be tried and Police is still waiting for the FSL report.

Consequently, the Court orders that Applicant be released on bail subject to the fulfilment of the following conditions: i. he shall provide a surety in the sum of Rs.300,000/-; ii. enter into a recognizance in the sum of Rs.1,000,000/-; iii. it shall be his responsibility to: a. be permanently equipped with a mobile phone and the number of which he shall communicate in advance to one or more Police officers nominated for that purpose; b. ensure that the mobile phone is in good working condition and open for communication at all times; iv. he shall reside at a fixed place of residence indicated by him to the Police; v. he shall, by virtue of a curfew order hereby imposed upon him, remain at his place of residence daily from 8p.m to 5a.m, and in case of emergency situation, he shall inform the Police of same before leaving his place of residence during the said curfew hours; and vi. he shall report to the Police Station nearest to his place of residence once daily between 6:00a.m and 6p.m.

Z Cassamally (Dr) Ag. District Magistrate 10.07.2020