Supreme Court of Mauritius, 13 juillet 2020, 2020 BRC 254 – Police v Jean Yannick Nataniel Marguerite

Police v Jean Yannick Nataniel Marguerite

2020 BRC 254

IN THE BAIL AND REMAND COURT

Provisional Cause Number 401/2020 (Savanne) BRC Cause Number 3048/20

In the matter of:

Police

v/s

Jean Yannick Nataniel Marguerite

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING: POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii), 45 (1) and 47 (5) (a) of the Dangerous Drug Act. The Applicant has moved that he be admitted to bail and he was represented by Me. A. Peeroo at the bail hearing. The case for the prosecution was conducted by Police Prosecutor and the proceedings were held in Creole language for the benefit of the Applicant. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the ground of risk of absconding.

THE CASE FOR THE PROSECUTION

PS 8266 Coonlyc, 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 went on to explain that on 22 nd May 2020 following information received, ADSU officers arrested the Applicant at Britannia for being in possession of 69 pieces of aluminium foils each containing a certain quantity of substance suspected to be synthetic cannabinoids. The main enquiry officer explained that the value of the drug was Rs 21 550 and that the Applicant had confessed to the charge. The police officer further explained that since the charge was one of drug dealing and a heavy penalty could be imposed, the Applicant can abscond if he is granted bail. The main enquiry officer stated that the Applicant has both a clean record and a fixed place of abode and that only the FSL report was missing to complete the enquiry.

In cross examination the police officer stated that the Applicant has a fixed place of abode and that the FSL report could take time to be obtained. 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 stated that he would respect all bail conditions imposed by the Court. The case was then closed for the Defence.

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 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 this ground of objection for bail, being given the seriousness of the offence and the probable custodial sentence to be imposed should the Applicant be found guilty, there is no doubt, that there is 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 therefore taken into account the past records of the Applicant. The Applicant has a clean record, he has a fixed place of abode and he has family ties as well. I have borne in mind that although there is a risk of the Applicant absconding, the Court should consider whether conditions can be imposed on the Applicant to render that risk 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 further considered the fact that the main enquiry officer has stated has the police enquiry was not completed and that the FSL report was yet to be obtained.

I have carried out a balancing exercise and find that there are conditions, severe ones, which could be imposed to effectively reduce the risk of the Applicant re- offending to a negligible level.

The Applicant is admitted to bail under the Bail Act on the following bail conditions:

(1) The Applicant is to furnish a surety in the sum of Rs 30 000 (cash); (2) The Applicant is to enter into a recognizance in his own name for the sum of Rs 100,000; (3) The Applicant is to report to the nearest police station every Monday, Wednesday and Saturday once between 06 00 hours and 18 00 hours; (4) A curfew order is imposed on Applicant. He is to remain indoors between 20 00 hours and 05 00 hours daily at his place of residence, address given to the enquiry officer. In case of any emergency, the Applicant is to inform the police before proceeding outdoors; (5) The Applicant is to reside at a fixed place of residence, address to be provided to the enquiry officer and verified by him; (6) The Applicant is not to re-offend whilst on bail.

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