Supreme Court of Mauritius, 17 avril 2020, 2020 BRC 96 – P Mudun v Police

1 P Mudun v Police

2020 BRC 96

Provisional Cause Number 553/20 (Lower Plaines Wilhems (Rose-Hill)) BRC Cause Number – THE BAIL AND REMAND COURT (MAURITIUS) In the matter of:- Padmini Mudun v/s Police RULING

Introduction

1. The Applicant stands charged with the offences of 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 under Count I and money laundering in breach of sections 39(1)(a) and 47(5)(a) of the Dangerous Drugs Act under Count II. She has been on remand since the 02 nd March 2020 and her Counsel, Me Teeluckdarry, who appeared together with Me Meeajun, has moved that she be admitted to bail. Me Bucktowar appeared for the Respondent, assisted by PS Appadoo.

2. Facts and circumstances of the case

On the 29 th February 2020, a search was carried out at the Applicant’s place and the Police secured from a plastic cabinet, in a room, a twisted transparent plastic sachet, containing a certain quantity of suspected synthetic cannabinoids (44.9 grams) and the sum of Rs 22,775, suspected to be the proceeds of drugs. The value of the drugs secured is Rs 224,500. The Applicant has denied the charge. Case for Respondent

3. PS Bonomally, of ADSU Rose-Belle, has been deputed by the Commissioner of Police to resist bail in the present case on the following grounds:

(i) Risk of absconding (ii) Risk of reoffending (iii) Interference with witnesses

4. As far as the first ground of objection is concerned, PS Bonomally stated that the Applicant is likely to be charged with a serious offence, for which she will face a heavy penalty, if she is found guilty. As such, the Police believe that she will abscond if granted bail, through fear of such penalty.

5. In relation to the second ground of objection, it is the contention of the Police that the Applicant will indulge anew in such transactions, should she be released on bail, taking into account the lucrative nature of the drugs business and the quantity of drugs secured. It was confirmed that the Applicant has a clean record and is not on bail.

6. With regards to the third ground of objection, it came out that the Applicant has implicated one Jeyssen, as the one who allegedly remitted the drugs to her. The said Jeyssen has remained untraceable so far and the Police believe that she will interfere with the latter, if she is released on bail.

7. The enquiry is short of the FSL report and one co-Accused is still at large.

8. The main EO was duly cross examined by Learned Counsel for the Applicant.

Case for the Applicant

9. From the dock, the Applicant stated that she would abide to all conditions imposed if released on bail.

The Law

10. I bear in mind the sacrosanct principle of presumption of innocence and the Constitutional rights of the Applicant to enjoy freedom and liberty.

11. Section 3 of the Bail Act provides that “Notwithstanding any other enactment and subject to section 4, every defendant or detainee shall be entitled to be released on bail.”

12. Section 4 (1) of the Bail Act reads as follows:

A court may refuse to release a defendant or detainee on bail where –

(a) it is satisfied that there is reasonable ground to believe that the defendant or detainee, if released, is likely to –

(i) fail to surrender to custody or to appear before a Court as and when required;

(ii) commit an offence, other than an offence punishable only by a fine;

(iii) interfere with witnesses, tamper with evidence or otherwise obstruct the course of justice, in relation to him or to any other person;

(b) it is satisfied that the defendant or detainee should be kept in custody –

(i) for his own protection;

(ii) in the case of a minor, for his own welfare; or

(iii) for the preservation of public order;

(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;

4 (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

(ii) no fixed place of abode;

(f) a detainee has failed to comply with section 12 (2).

13. Section 4(2) of the Bail Act provides that:

In considering whether or not to refuse bail on any ground mentioned in subsection (1), the Court shall decide the matter by weighing the interests of society against the right of the defendant or detainee to his liberty and the prejudice he is likely to suffer if he is detained in custody, taking into account every consideration which, in its opinion, is relevant, including –

(a) the period for which the defendant or detainee has already been in custody since his arrest;

(b) the nature and gravity of the offence with which the defendant or detainee is or is likely to be charged and the nature and gravity of the penalty which may be imposed on him;

(c) the character, association, means, community ties and antecedents of the defendant or detainee, including any non-compliance with any condition imposed for his release on bail with respect to any other offence; and

(d) the nature of the evidence available with regard to the offence with which the defendant is charged.

14. The rationale as to bail was clearly set out in the authority of Maloupe v The District Magistrate of Grand Port [2000] SCJ 233, where it was held that :

“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

5 the risks referred to above – i.e. 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 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.”

15. I bear in mind that the right balance has to be struck between the constitutional right of the Applicant to enjoy freedom and the interest of society at large.

16. It was held in Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215 that “In all countries where human rights are respected, the function of the law of bail is likely to be the same, being to reconcile, as stated in Labonne v The D.P.P (supra, at para 2.2.), “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 reasonably protected against serious risks which might materialise in the event that the detainee is really a criminal which he is suspected to be.”

17. In Islam v The Senior District Magistrate Grand Port District Court [2006] SCJ 282 at para 37, it was held that “Pre-trial bail is not a form of punishment to any individual. It is a form of partial and temporary restriction of his liberty with a view to disabling him against antisocial behavior.”

Finding 18. As far as the first ground of objection is concerned, that is the risk of absconding, I have considered the personal circumstances of the Applicant and the fact that she has no history of absconding. In the case of Neumeister vs Austria (1968) 1 ECHR 91 (27 JUNE 1968) at para 10, the Court had this to say:

6 “When the only (…) reason for continued detention is the fear that the accused will abscond and thereby subsequently avoid appearing for trial, his release pending trial must be ordered if it is possible to obtain from him guarantees that will ensure such appearance.” I further find that the seriousness of the offence is only a consideration to be weighed in the balance and not by itself a ground for refusing baiI. (Re: Labonne (JV) vs Director of Public Prosecutions (2005) SCJ 38). Therefore, I find that the very fact that the Applicant might eventually abscond as she is likely to face a heavy penalty if she is found guilty for the present offences, is not a reason in itself to justify her detention. As such, the first ground of objection raised by the police is based on a mere apprehension only, and as such, fails.

19. In relation to the second ground of objection, that is the risk of reoffending, considering the value of drugs involved in the present case, the nature of the evidence against the Applicant, and drug dealing being a lucrative business, I find that there is indeed a high risk that the Applicant might indulge anew in such transactions should she be released on bail. The present ground therefore succeeds after considering the following authorities:

(a) In Deelchand v The Director of Public Prosecutions & Ors [2005] SCJ 215 at para 5.8, it was held that : “The sentence expected in case of conviction is also a relevant consideration because of the greater risk that the offender may think he has nothing to lose by offending whilst on bail. The extent to which the offences which the applicant is suspected to have committed are lucrative should also be considered as the temptation, in case the applicant is guilty, that he may wish to make as much money as possible whilst on bail, is likely to be greater.” (b) In Islam (Supra) at para 32, it was held that: “Thus, somebody who is admitted to bail, who has been able to purchase – so to speak – his freedom by some monetary condition, walks out of the court- room, free from any type of effective control over his movements or his activities other than presumably reporting to the nearest police station twice a day. In between, where he goes, under whose influence he falls, with whom he associates himself to pursue what design is left to himself.”

7 (c) In Hossen v District Magistrate of Port Louis [1993] MR 9, it was held that : “Everyone knows that the consumption of certain drugs, like any other vice one may think of, is never likely to disappear completely from the face of the planet and that, at times, it may not be reasonable to insist on the detention of suspects of a certain type. But when, on the contrary, we are faced with a proliferation of drug consumption, or a resurgence of this scourge which can only result in the corruption and degradation of the country’s youth in particular, then the Courts have the duty and the responsibility to protect the public against every person who is involved in any activity that is likely to facilitate or encourage the drug trade”.

20. With regards to the third ground of objection, that is interference with witnesses, it is the contention of the Police that the Applicant has implicated one Jeyssen, as the person who remitted the drugs to her, and the latter has remained untraceable up to now. As such, the Police believe that she will interfere with him, should she be released on bail.

21. In the case of Deelchand v The Director of Public Prosecutions and Others (2005) SCJ 215, it was held that: “It would be preposterous to hold the view that in each and every application for bail, it would suffice that an enquiring officer should express his fear that the applicant would interfere with one or more witnesses for the accused to be denied bail on that ground. To satisfy the court that there is a serious risk of interference with a witness, satisfactory reasons, and appropriate evidence in connection thereof where appropriate, should be given to establish the probability of interference with that witness by the applicant.” The following extract from “Bail in Criminal Proceedings” (1990), Neil Corre, was also referred to in the same case as follows: “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

8 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”.

22. I bear in mind that, save and except for the mere apprehensions on the part of the Police, no concrete evidence has been ushered in to show that the Police have information as to the whereabouts of the said Jeyssen or as to whether the Applicant has tried or will try to interfere with such a witness. As such, the third ground of objection fails.

23. Having found that the second ground of objection has been substantiated, this Court has an inherent duty to assess whether conditions can be imposed to adequately curb the risks identified, so as to render such risks negligible as expounded in the case of Maloupe (Supra). In Deelchand (Supra), it was held that “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.”

24. The circumstances of the present case are such that no conditions can be imposed to reduce the risks that have been identified. As such, this Court declines to exercise its discretion in favour of the Applicant and finds that his continued detention is warranted. The present application is, therefore, set aside.

25. It was confirmed that the enquiry is short of the FSL report and a co-Accused needs to be arrested. As such, the Prosecution should lodge the formal charge against the Applicant as soon as possible, so that she can be tried within a reasonable time as guaranteed by the Constitution.

26. Based on Section 5 (3) of the Constitution and the observations made by the Court in Islam (Supra) at para 38 (5) and in Hurnam (supra) at para 15, I order that if a formal charge is not lodged against the Applicant by latest the 01 st

July 2020, the Applicant shall be admitted to bail on the following conditions:

9 (i) The Applicant shall furnish a first surety of Rs 100,000 in cash;

(ii) The Applicant shall furnish a second surety of Rs 200,000 in cash or title deed;

(iii) The Applicant shall enter into a recognisance of Rs 500,000 in her own name;

(iv) The Applicant shall report to the nearest police station to her place of abode everyday, once a day, between 06 00 hours and 18 00 hours;

(v) The Applicant shall reside at a fixed address, which address shall be provided to the Police;

(vi) A curfew order is imposed on the Applicant. The Applicant shall stay at her residential address, as provided to the Police, from 20 00 hours to 05 00 hours on a daily basis. In case of an emergency warranting her to go out, she must contact the Police to inform them of her predicament before proceeding outside during the hours of curfew and

(vii) The Applicant shall have in her possession a mobile phone in good working condition, the phone number of which is to be provided to the police, so that she may be contacted by the police, as and when required and

27. The case is fixed Pro-Forma to the 01 st July 2020.

Shavina Jugnauth (Miss) District Magistrate This 17 th April 2020

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