Supreme Court of Mauritius, 13 juillet 2020, 2020 PL2 56 – Police v Valaydon

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Police v Valaydon

2020 PL2 56

POLICE v VALAYDON

Provisional CN 3765/20

IN THE DISTRICT COURT OF PORT LOUIS (Division II)

In the matter of:-

Police

v.

Kevin VALAYDON

RULING

Applicant stands provisionally charged with the offence of Trafficking in Person in breach of sections 11(1)(a), 11(2)(a) and 14 of the Combating of Trafficking in Persons Act 2009.

At the bail hearing, Senior Counsel Me. Glover together with Me. Bissessur appeared for Applicant, and State Counsel Me. Callichurn conducted the case for Prosecution, in the presence of PS Thakoor.

All the parties agreed that the proceedings be held in Creole.

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

As regards the risk of reoffending, section 4(1)(a)(ii) of the Bail Act (Act 32/1999) [“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 v The Director of Public Prosecutions and others [2005 SCJ 215] 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.

Here, during examination in chief, the Enquiring Officer explained that a search was conducted by the Police on 30.06.2020 in a guest house, Villa Valaydon, during which Malagasy women were found in a room, and the Malagasy women identified Applicant as being the person who recruited them for sexual exploitation against payment of money. He added that the Malagasy women mentioned that they were in financial difficulties and were recruited from Madagascar to work at Villa Valaydon in Mauritius to earn “l’argent facile”. During cross-examination, the Enquiring Officer pointed out that the Malagasy women were paid by Applicant. He also stated, during examination in chief, that an official register for the guest house business was seized in which the names of the Malagasy women were not mentioned but male names were found.

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.

In the present matter, the case for Prosecution seems to rest essentially on the identification and testimonial evidence of the Malagasy women and on real evidence found in a guest house where Applicant is said to be the manager. Consequently, the nature of the evidence appears to be strong, and as such, the risk of offending is not excluded.

In addition, the Combating of Trafficking in Persons Act 2009 (Act No. 2 of 2009) provides for 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.

The Court also notes from the testimony of the Enquiring Officer that the business of trafficking in person is lucrative, and as such, the risk of offending whilst on bail is to be considered.

For the abovementioned reasons, the Court is of the view that the risk of offending is plausible.

As regards the risk of interfering with witnesses, section 4(1)(a)(iii) of 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 (supra), 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.

Here, it appears from the testimony of the Enquiring Officer that the Malagasy women already identified Applicant and they are under the protection of the police because of their irregular stay in Mauritius. Consequently, it is unlikely that Applicant would, or even could, interfere with these witnesses and hinder the tracing out of the alleged local or foreign recruiting agents.

In addition, the Court notes from the testimony of the Enquiring Officer that, following the seizure of the phone of Applicant, mirror imaging was carried out by the IT Unit, and subsequently, the phone of Applicant was returned to him. The Enquiring Officer conceded that the Police has all the elements in that respect. As such, the fact that the IT Unit has not yet communicated its report would not constitute a bar to the release of Applicant on bail.

Moreover, the Enquiring Officer mentioned that an official register in relation to the business of the guest house was secured and names were identified therein. However, he added that there is a risk that Applicant may interfere with these persons given that their statements have not yet been recorded. In that respect, it is worth referring to the judgment of Deelchand (supra) where the Supreme Court cited the book “Bail in Criminal Proceedings” (1990) by Neil Corre, and 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 Supreme 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”.

It is clear from the above that further enquiries and the alleged complexity of the enquiry because of international ramifications would not per se constitute adequate grounds for refusing bail. It is incumbent on Prosecution to substantiate its contention that Applicant, if released on bail, would interfere with the potential witnesses.

Furthermore, the Enquiring Officer referred to the past conviction of Applicant in relation to a case of criminal intimidation. The record of convictions of Applicant was filed and marked as Doc X. The Court notes from Doc X that the case in question bearing CN 4673/06 was lodged around 14 years ago. Consequently, this document does not by itself establish that Applicant if released on bail would necessarily intimidate potential witnesses especially that the Malagasy women, who appear to be the main witnesses, are under the protection of the police as mentioned above.

The Court is of the view that the Enquiring Officer cannot reasonably contend that the enquiry is still at a very early stage given that he admitted that the Malagasy women already identified Applicant, the phone of Applicant was returned to him following the mirror imaging by the IT Unit and names were identified from the official register secured by the police at the guest house Villa Valaydon.

Consequently, the Court finds that the risk that Applicant may interfere with witnesses, if released on bail, is not sufficiently substantiated.

Besides, when the case for Prosecution was closed, Applicant made a statement from the dock that he will abide by the conditions that the Court may impose if he is granted bail.

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 the view that the risk of offending 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 will stand trial.

Consequently, the Court orders that Applicant be released on bail subject to the fulfilment of the following conditions: a) he shall provide a surety in the sum of Rs.100,000/- ; b) enter into a recognizance in the sum of Rs.500,000/- ; c) it shall be his responsibility to: i. 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 ; ii. ensure that the mobile phone is in good working condition and open for communication at all times ; d) he shall reside at a fixed place of residence indicated by him to the Police ; e) 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 ; f) he shall report to the Police Station nearest to his place of residence once daily between 6:00a.m and 6p.m. ; and g) he shall not hamper, whether directly or indirectly, the investigation.

Z Cassamally (Dr) Ag. District Magistrate 13.07.2020