Supreme Court of Mauritius, 13 juillet 2020, 2020 BRC 252 – Police v Jean Albano Kerley L’Aiguille

Police v Jean Albano Kerley L'Aiguille

2020 BRC 252

IN THE BAIL AND REMAND COURT

Provisional Cause Number 955/2020 (Flacq) BRC Cause Number 3071/20

In the matter of:

Police

v/s

Jean Albano Kerley L’Aiguille

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING TO WIT: POSSESSION OF CANNABIS RESIN FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (i) and 47(5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he was represented by Me. G. Dayal at the bail hearing. The proceedings were held in Creole language for the benefit of the Applicant and the Respondent is resisting the motion and is objecting that the Applicant be granted bail on the ground of risk of re-offending.

THE CASE FOR THE PROSECUTION

PS 6965 Jadaw posted at ADSU Eastern, 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 explained that on 2 nd June 2020 at around 05 30 hours, the police proceeded to Applicant’s place at Trou D’Eau Douce and during a search exercise carried out cannabis resin was seized and the value of the drug was Rs 19 000. The Court was informed that the Applicant had denied the charge and as drug dealing was a lucrative business the police believe that the Applicant will re-offend if he is granted bail. The main enquiry officer stated that the Applicant has a clean record, he is not currently on bail and he has a fixed place of abode. The police officer further stated that only the FSL report was missing to complete the police enquiry.

In cross examination the officer stated that the Applicant lives together with his parents and maintained his ground of objection and 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 respect all bail conditions imposed by the Court and the case was then closed for the Defence.

Defence Counsel offered no submissions and simply left matters 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 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 that Applicant has weak professional ties and 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 DISTRICT MAGISTRATE 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 has explained that the FSL report was yet to be obtained. 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. I note further that the Applicant has a clean record and is not currently on bail for any other offence. I further note that there is no history of breach of condition of release and in cross examination the main enquiry officer himself stated that the Applicant has a fixed place of abode as well as family ties.

For all the above mentioned reasons I therefore find that the ground of objection appears to be a mere apprehension and that bail conditions can be imposed by the Court to render the risk of re-offending negligible.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances does not outweigh his right to remain at large.

For all the above mentioned reasons, I find that this is a proper case for the present Court to exercise its discretion to grant bail to the Applicant. I therefore grant him bail under the Bail Act on the following conditions:

(1) The Applicant is to furnish a surety in the sum of Rs 40 000 (cash); (2) The Applicant is to enter into a recognizance of Rs 100 000 (own name); (3) The Applicant is to report to the nearest police station once daily between 06 00 hours and 18 00 hours;

(4) The Applicant should not commit any offence and reoffend whilst on bail; (5) The Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry officers and which will be verified by them; (6) The Applicant shall have in his possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that he may be contacted by phone, as and when required for the purposes of the enquiry;

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 13 th July 2020