Supreme Court of Mauritius, 8 juillet 2020, 2020 BRC 237 – Police v Ramahaimandimby Andry Andrialalala

Police v Ramahaimandimby Andry Andrialalala

2020 BRC 237

IN THE BAIL AND REMAND COURT

Provisional Cause Number 872/2017 (Grand Port) BRC Cause Number 2853/17

In the matter of:

Police

v/s

Ramahaimandimby Andry ANDRIAMALALA

RULING

The Applicant stands provisionally charged with the offence of DRUG DEALING WITH AGGRAVATING CIRCUMSTANCES (IMPORTATION OF HEROIN WITH AN AVERMENT OF TRAFFICKING) in breach of Section 30 (1) (b) (ii), 41 (3) (4) and 47 (2) (5) (a) of the Dangerous Drug Act. The Applicant has moved that he be admitted to bail and he was represented by Me. S. Hawoldar at the bail hearing. The hearing for the Respondent was conducted by State Counsel, Me Dawoonauth assisted by the Police Prosecutor and the Court proceedings were held in English for the benefit of the Applicant. The Respondent is resisting the motion and is objecting that the Applicant be granted bail on the following grounds:

• Risk of absconding • Risk of re-offending • Risk of interfering with witnesses

THE CASE FOR THE PROSECUTION

PS 1059 Lauthan, 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 grounds. The police officer went on to explain that on 12 th June 2017 at SSR International Airport, following certain information regarding illicit drugs, ADSU officers viewed CCTV cameras concerning arrivals for flight MK 209 coming from Madagascar which landed on 11 th June 2017 at 19 36 hours. The police officer explained that the movement of the passengers were scrupulously monitored as well as that of PC 7840 Govindasamy Bassana Reddy who was on duty at the immigration counter at the arrival lounge. The movement of the Applicant was also scrutinised and he was seen entering the toilet adjacent to the Passport and Immigration Office counters with a shoulder bag and he was seen leaving two minutes later. The footage also revealed that just after that on three consecutive occasions PC Bassana Reddy was seen going in and out of the toilet. The officer went on to state that on the same day at 15 00 hours ADSU Officers found and secured in a room used as store two plastic parcels each containing a significant amount of powder suspected to be heroin in a carton box found hidden under a pile of magazines. The Court was informed that PC Bassana Reddy had confessed to having retrieved same from the toilet and he stated that a Malagasy passenger left the parcel in the toilet for him to deliver same and on 20 th

July 2017 PC Bassana Reddy identified the Applicant as being the said Malagasy passenger.

Concerning the risk of interfering with witnesses, the main enquiry officer went on to state that the value of the drug was estimated to be between 18 to 19 Million Mauritian Rupees and he further explained that on 26 th February 2020 a Judge’s Order was obtained in the present case and that telephone operators had been communicated same for a detailed report regarding phone exchanges, calls and messengers to be obtained and communicated. The main enquiry officer stated that until now same has not been communicated to the police and if granted bail, the police fear that the Applicant will interfere with those people whose phone calls he had received and he would be prompted to protect other potential co-Accused parties in the present case.

Concerning the risk of absconding, the main enquiry officer explained that the present case will be tried before the Assizes and that a heavy penalty can be imposed. He stated further that the Applicant does not have a fixed place of abode in Mauritius and as he is a foreigner he has no one to cater for him. The police officer further explained that Mauritius is a small island and that constant surveillance is impossible and one can easily abscond.

In relation to the risk of re-offending, the main enquiry officer explained that the enquiry revealed that in the past the Applicant has sent drug parcel to Mauritius and also based on the fact that the Applicant is unemployed, he is a foreigner and also based on the fact that drug dealing is a lucrative business, he will be prompted to organise the importation of drugs into Mauritius.

The main enquiry officer further explained that a memo was sent to Interpol regarding the previous conviction of Applicant if any in Madagascar and same has not yet been obtained. The officer stated further that the Applicant had denied the charge and that reports from the Interpol as well as from telephone operators are being awaited to complete the police enquiry.

In cross examination the main enquiry officer confirmed that the Applicant has been in detention for nearly three years and he explained that the enquiry could not be completed as the phones secured in the present case were produced before ex Justice Lam Shang Leen and the Commission of enquiry on drugs and this caused undue delay. The enquiry officer explained that two people have so far been implicated in this case and others were yet to be arrested and he stated that he could not say when the formal charge would be lodged against the Applicant. The case was then closed for the Prosecution.

THE CASE FOR THE DEFENCE

The Applicant was explained his Constitutional Rights and from the dock he stated that he would respect all bail conditions imposed by the Court should he be granted bail and he explained that he had family issues.

Mr Gioacchino Barbera, a Pastor and businessman at the same time was called as a witness and he explained that he knew the Applicant’s mother who used to reside at his place whenever she has visited Mauritius. The witness stated that he had a relationship with the Applicant’s mother and was willing to take the Applicant’s responsibility if he was granted bail.

In cross examination the witness confirmed that he has responsibilities in his capacity as Pastor and businessman and that he will not be able to stay with the Applicant all the time. He further conceded that the Applicant was an adult and that it was possible for the Applicant to run away from his place. The case was then closed for the Defence.

Both Counsels for the Applicant and that for the Respondent offered brief submissions on the facts of this present case and on the principles of bail as established by the case law.

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 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 taken into consideration the fact that Applicant is a foreigner with family ties in Madagascar. I have looked at the past conduct of the Applicant based on the reasoning that it would be indicative of what he may be capable of doing. I have also tried to make a reasonable projection of what the Applicant may do or may be tempted to do in the future bearing in mind the developments and circumstances surrounding his case. I note that the report from Interpol regarding the previous convictions of the Applicant if any at all is still being awaited and I have considered the fact that the police enquiry is still ongoing and has very much progressed since the telephones secured in the present case have been returned back from the Commission of enquiry on drugs.

I have taken note that a Judge’s order has been obtained and needful was being done regarding the itemized billing of the phones secured. I have taken into account that the enquiry will be completed as soon the itemized billing for the phones secured and the report from Interpol are received. I note that an application for a Judge’s Order was obtained on 26 th February 2020 and I have even considered the fact that there was a lockdown of nearly two months following that in light of the Covid 19 Pandemic situation in Mauritius. Since the Applicant was positively identified by PC Bassana Reddy who confessed to have retrieved the drug parcels for the purpose of delivery and in view of the circumstantial evidence against the Applicant as well as the contacts that the latter has in Madagascar who can indeed help him to travel abroad and take refuge outside our jurisdiction and further taking into account the means that can be obtained to effect payment in order to meet the expenses or organizing and carrying out the act of absconding, especially if it involves leaving the country bearing in mind that Mauritius is a small island having other islands as neighbours and that it would be impossible for our authorities to keep the whole of the shores in Mauritius under constant surveillance, there is an increased responsibility on this Court, whilst bearing in mind the general principle that liberty is the rule and detention the exception, to see that justice is not baffled when Accused parties awaiting trial simply leave the country by hiring powerful boats as has been the case in the past. (Re: The Director of Public Prosecutions v/s Louis Jimmy Marthe [2013 SCJ 386a]).

I have further considered the testimony of the witness called by the Respondent under oath and note that he himself confirmed that there was a possibility of the Applicant running away from his place and considering his professional commitments he will not be able to stay and supervise the Applicant all the time.

Regarding this ground of objection, I find in the light of all the observations above that there are no conditions that I can impose to render this ground of objection negligible. This ground of objection can stand.

RISK OF RE-OFFENDING

Regarding this ground of objection raised by the prosecuting authorities, there is no doubt that drug trafficking being a lucrative business and the substantial value of the drugs secured in the present case, there is a serious risk of the Applicant being tempted to commit further offences. I take note that under oath the main enquiry officer stated that there was evidence linking the Applicant with the business of drugs as he has apparently sent drug parcel to Mauritius in the past. 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 DISTRICT MAGISTRATE OF GRAND PORT (2000) MR 64) . In the case of DOOKHIT S. v THE DISTRICT MAGISTRATE OF PAMPLEMOUSSES, DISTRICT COURT, PAMPLEMOUSSES (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 note that the record of previous conviction of the Applicant is not currently available and that in the present case, the Applicant has denied the charge against him. I have borne in mind that although 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 that he is prepared to abide by any conditions that the Court may impose. I am however of the opinion that there are no conditions, even severe, which could be imposed to effectively reduce the risk of the applicant re-offending to a negligible level. I find that this ground of objection can stand.

RISK OF INTERFERING WITH WITNESSES

I shall now turn to this ground of objection raised by the police in relation to the present case, namely the risk of interference with witnesses. I shall refer to the case of DEELCHAND V THE DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS [2005SCJ 215], where reference was made to Neil Corre quoting an extract of his book “Bail in Criminal Proceedings” (1990), to express the most common manifestations where there is a risk of interference with witnesses, namely:

(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.

In the present case, the police apprehend that the Applicant might interfere with witnesses whose identities are not yet known and would be revealed once the itemized bills are obtained. Replies from the Interpol are also being awaited concerning these potential witnesses and if granted bail the police fear that Applicant with interfere with these people. I have considered that the fact that these witnesses have not yet given their statements and as the Applicant himself has denied the charge against him, I find that therefore, the risk of him interfering with the witnesses

will bear much consequential effect. I therefore find that this ground of objection can stand.

After carrying out the required balancing exercise, I hold that the need for Applicant to be in continued detention in the circumstances outweighs his right to remain at large. The motion for bail is therefore set aside. However, the Applicant has the right to be tried within a reasonable time as stipulated under Section 5(3) of the Constitution. The Applicant “must, whatever the Bail Act says or does not say, be released unless he is brought to trial within a reasonable time” vide Hossen v District Magistrate of Port Louis [1993 MR 9].

In light of the above and after finding that the delay so far in this case is not of an undue nature taking into account the complexity of the police enquiry and bearing in mind that the telephones secured were before the Commission of enquiry on drugs for a period of time, I strongly urge the Prosecuting Authority to complete the enquiry as expeditiously as possible taking into account the amount of time spent by Applicant on remand so far and to lodge the formal charge against him so that he is tried within a reasonable time as guaranteed by the Constitution.

I am reminding the authorities that there are several pronouncements of the Supreme Court stressing the need for the prosecution authorities to adopt a fast track procedure in cases where defendants are the subject of pre-trial detention, as is the case before this bench today. In Islam v Senior District Magistrate, Grand Port District Court [2006 SCJ 282], where the Supreme Court held that a detainee who has not been admitted to bail has “the right, in case of a continuing refusal, to a trial within a reasonable time with the special feature that it is a case of a remand prisoner.” Also in Hurnam v The State [2004 PRV 53], where the Judicial Committee of the Privy Council stated the following: “the general right to be released on bail and the right to be released if not brought to trial within a reasonable time, which are both important rights but distinct and different rights.”

This Court further reminds the authorities that in cases where the Accused are detained pending the completion of the Police enquiry and their subsequent trial, the DPP’s Office should endeavor to monitor at regular intervals the police progress in those cases so that the Accused parties can be formally charged and tried as soon as is “conveniently and reasonably possible.” (As per Teeluckchand & Anor v District Magistrate of Rivière du Rempart [1989 MR 29] which was recently quoted in Rungasamy J.P.T.D.S. v The Presiding Magistrate of The Bail and Remand Court [2020 SCJ 38].

B. PRAYAG-RAJCOOMAR (Mrs)

Ag. Senior District Magistrate This 8 th July 2020