Supreme Court of Mauritius, 30 avril 2020, 2020 BRC 77 – Police v Kelvin Trilochun

Police v Kelvin Trilochun

2020 BRC 77

IN THE BAIL AND REMAND COURT

Provisional Cause Number 388/2020 (Upper Plaines Wilhems)

In the matter of:

Police

v/s

Kelvin Trilochun

RULING

The Applicant stands provisionally charged with the offence of POSSESSION OF SYNTHETIC CANNABINOIDS in breach of Sections 34 (1) (b) 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. C. Baboolall at the bail hearing. The proceedings were held in English language and in light of both the Covid 19 pandemic situation and the lockdown situation prevailing in Mauritius, all parties were present via video call and they had no objection that the matter be heard via video call and for all documents to be communicated electronically.

The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the grounds of Risk of re-offending.

THE CASE FOR THE PROSECUTION

PS Dilloo posted at ADSU Central Division and the main enquiry officer was called by the Police Prosecutor for 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. He went on to explain that on 4 th March 2020, following a search exercise carried out at the place of Applicant, police secured two aluminium foils each containing leaf matter suspected to be cannabinoids. The police officer went on to state that the value of the drugs secured was Rs 200 and that the Applicant had confessed to the charge. The police officer went on to state that the

Applicant was on bail for cognate offences and that he had a clean record. As regards the status of the enquiry, the main enquiry officer informed the court that the enquiry was only short of the FSL report. In relation to the ground of objection, the main enquiry officer explained that since the Applicant committed the present offence whilst being on bail for two drug dealing case, the police believes that if granted bail, he will commit further offences.

In cross examination the main enquiry officer confirmed that the Applicant had both a fixed place of abode as well as family ties and that he had a secure job as ‘service agent.’ The police officer explained further that he could not say when the formal charge would be lodged against the Applicant and he confirmed that the Applicant had been on remand for this case since the 3 rd March 2020 and that he had never committed any breach of condition of release. The enquiry officer stated finally that the ground of objection was merely an apprehension by the police and the case was 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 comply with all bail conditions imposed by the court. The case was then closed for the Defence.

Defence Counsel briefly submitted briefly and stated that the grounds of objections were mere apprehensions. No defence witness was called and the case was 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 there is a serious risk of the applicant being tempted to commit further offences regarding Doc A on record showing that the Applicant was on bail for two drug offences when he was arrested for the present case. 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 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 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 duly considered the clean record of the Applicant and I also took into account the fact that the main enquiry officer stated that there was no indication as to when the main case against the Applicant would be lodged. I have further considered the value of the drug being merely Rs 200 and 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 ground of objection in relation to the risk of re offending cannot succeed as the main enquiry officer failed to sustain that ground of objection and stated that it was only an apprehension.

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 and that conditions can be imposed to render the ground of objection negligible.

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 on the following conditions:

(1) The Applicant is to furnish a cash deposit in the sum of Rs 20 000; (2) The Applicant is to enter a recognizance of Rs 50 000 (own name); (3) The Applicant is to report to the nearest police station every Saturday between 06 00 hours and 18 00 hours. The reporting is to start as from the 1 st

day after the expiration of the confinement period currently in force in Mauritius; (4) The Applicant should not commit any offence and reoffend whilst on bail; (5) A curfew order is imposed on Applicant. He is to remain indoors at his residential address as provided to the police between 20 00 hours and 05 00 hours on a daily basis. In case of emergency, the police are to be contacted to inform them of his predicament before proceeding outside during the hours of curfew

In relation to the first bail condition, the required cash deposit is to be deposited at the nearest bank in an SBM account in the name of the Accountant General, the number and details of which is obtainable by Applicant’s Counsel from the court manager of the court where the provisional case was lodged, in the present case, Upper Plaines Wilhems District Court.

B. PRAYAG-RAJCOOMAR (Mrs) Ag. Senior District Magistrate This 30 th April 2020