Supreme Court of Mauritius, 13 mars 2020, 2020 BRC 48 – Police v Samuel Dick Rose

Police v Samuel Dick Rose

2020 BRC 48

IN THE BAIL AND REMAND COURT

Provisional Cause Number 37/2020 (Grand Port) BRC Cause Number 126/20

In the matter of:

Police

v/s

Samuel Dick Rose

RULING

The Applicant stands provisionally charged with the offences of (1) DRUG DEALING- SELLING DANGEROUS DRUGS in breach of Sections 30 (1) (d) (ii) and 47 (5) (a) of the Dangerous Drug Act (2) DRUG DEALING- POSSESSION OF SYNTHETIC CANNABINOIDS FOR THE PURPOSE OF SELLING in breach of Sections 30 (1) (f) (ii) and 47 (5) (a) of the Dangerous Drugs Act and (3) POSSESSION OF MATERIALS AND EQUIPMENTS FOR USE IN THE PRODUCTION OF SYNTHETIC CANNABINOIDS in breach of Sections 33 (a) (b) and 47 (5) (a) of the Dangerous Drugs Act. The Applicant has moved that he be admitted to bail and he stood inops consilii at the bail hearing. 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 re-offending.

THE CASE FOR THE PROSECUTION

PS Bonomally, 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 7 th January 2020 during an ADSU operation, Applicant sold 6 doses suspected to contain synthetic drugs to ADSU officers worth Rs 3250. The main enquiry officer explained that after the Applicant was arrested, the police carried out a search at his place of residence and seized 13 doses of aluminium suspected to contain synthetic drugs. The value of the drug is Rs 15, 350 and he went on to explain that the police further secured various materials like porcelain plate, a blade, a roll of aluminium foil and a pair of scissors as well as the sum of Rs 2200 believed to be derived from drug dealing. The officer stated that the value of the drug was Rs 18, 600 and that the Applicant had confessed to the charges. The officer explained that since Applicant was unemployed and taking into account that drug dealing was a lucrative business, the police has reasons to believe that should Applicant be granted bail, he will re-offend. Applicant has a clean record and not on bail. The court was informed that only the FSL report was missing to complete the enquiry and that a reminder to that effect had been sent.

= THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and he went on to state that he has family ties and wishes to be granted bail.

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 ground of objection, there is no doubt that drug trafficking being a lucrative business, there is a serious risk of the applicant being tempted to commit further offences. The more so when one considers the fact that Applicant is of no calling and the paraphernalia found at his place of residence. 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 o f the evidence. (RE: MALOUPE VS DISTRICTMAGISTRATE 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, PAMPLEMOUSSE S (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 however 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 Applicant’s statement from the dock. I note further that Applicant has a clean record and not currently on bail. I do also note that the main enquiry officer has stated that the police enquiry was short of the FSL report. I am of the opinion that there are conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level.

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. The Applicant is to be granted bail on the following conditions:

(1) Applicant is to furnish a surety in cash in the sum of Rs 50 000 (2) Applicant is to furnish a recognizance in his own name in the sum of Rs 100, 000 (3) Applicant is to report to the nearest police station daily between 06 00 hours and 18 00 hours (4) The Applicant should not commit any offence whilst on bail (5) A curfew order is imposed on Applicant. He is to remain indoors daily between 19 00 hours and 05 00 hours at his residential address and in case there is an emergency warranting him to go out, he must contact the police to inform them of his predicament before proceeding outside during the hours of curfew (6) Applicant is to reside at a fixed place of abode, address which he will communicate to the enquiry officers (7) 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

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