Police v Luco Philippe

2014 ROD 1

IN THE COURT OF RODRIGUES

PROV CN 10/14
PROV CN 11/14

POLICE

LUCO PHILIPPE

RULING

The applicant stands provisionally charged with the offences of possession of prohibited goods in
breach of sections 156(1)(c)(iii) and (2) (a) (i) (b) of the Customs Act in PCN 10/14. He is equally
charged with the offence of drug dealing (possession of cannabis for the purpose of distribution) in
breach of sections 30(1) (d), 48 & 47(5)(a) of the Dangerous Drugs Act 41/2000 as amended by Act
30/08 in PCN 11/14. Since the two charges stem from one incident, only one bail hearing was
conducted and a copy of the ruling is to be filed in each file.

A provisional charge was lodged against accused on 7 January 2014 and on the same day, Me
Baboolall, appearing for the accused, moved that he be admitted to bail. The motion was duly heard
on 13 January 2014.

PS Louis who appeared for the State opposed the application and Ps Edouard submitted that the
application was incompetent on three grounds namely,

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 1. If released applicant may fail to surrender to custody or appear in Court as and when
required.

2. If released applicant may interfere with witnesses or otherwise obstruct the course of
justice.

3. If released applicant may commit an offence other than an offence punishable by a fine not
exceeding Rs 1, 000

The history of the matter is as follows-

On 6 January 2014, by virtue of a search warrant, ADSU officers searched Bamboo Villa at Mt Lubin,
which was occupied by accused and his concubine and following the search, police secured a certain
quantity of leaf matter suspected to be cannabis, 303 seeds suspected to be cannabis seeds along
with 6 boxes of cigarette rolls suspected to be used in connection with smoking cannabis. The
market value of the drugs was quoted at Rs 54, 453.

To substantiate ground I, Ps Edouard affirmed that applicant had no fixed place of abode so that
police may have difficulty to trace him out whenever he is needed. He sustained his contention by
producing a declaration made by the wife of applicant, on 1 August 2013, whereby she stated that
applicant had moved out of her house since 31 July 2013 to live with his concubine at Bamboo Villa.
The document was marked as doc A. He further stated that applicant was renting the place at
Bamboo Villa so that he may leave at any time. The witness further affirmed that if found guilty
applicant may face the risk of a term of imprisonment in the present case and that this may induce
him to abscond.

To sustain the second ground of objection, Ps Edouard stated that statements need to be recorded
from two key witnesses and that since the applicant is close to them, being related to both of them,
there is a real likelihood that applicant may tamper with witnesses if he is released on bail.

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Under the third ground of objection, Ps Edouard affirmed that since drug business was a lucrative
business police believed that applicant may be tempted to commit further similar offences. He
however later added that this ground was based on mere apprehensions of the police.

The witness concluded by stating that applicant was not borne on record and nor was he on bail for
any other offence.

Under cross examination the witness conceded that there was no evidence that applicant may
abscond if he is released or that he may interfere with witnesses. He denied that applicant had a
fixed place of abode by electing domicile at Bamboo Villa. He further conceded that applicant had a
fixed job.

The case was there closed for the prosecution.

The detainee expressed his determination to abide by all conditions imposed by this Court in the
event of him being granted bail, under oath. He further stated that he lived at Petit Gabriel.

Under cross examination the applicant confirmed that he lived both at Bamboo Villa and Petit
Gabriel and averred that he was not aware of the fact that his wife had given a declaration as a
precautionary measure to the effect that he had abandoned his conjugal roof. He further stated that
he was not going back to Bamboo Villa since the landlord had asked him to vacate the place. He
therefore stated that he would be going back to Petit Gabriel upon his release.

I have duly considered the merits of the present application.

The interests of justice require that there be no doubt that the accused shall be present to take his
trial upon the charge in respect of which he has been committed. When a person has been charged

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with an offence and the wheels of justice are set in motion, the accused person is expected to be
prosecuted for the offence and the law requires that the accused shall be available to stand his trial
until the case is completed.

In dealing with an application of this nature (i.e. an application for bail), it is necessary to strike a
balance as far as can be done between protecting the liberty of the individual and safeguarding and
ensuring the proper administration of Justice. If there are indications that the proper administration
of justice and the safeguarding thereof may be defeated or frustrated if an accused is allowed out on
bail, the court will be fully justified in refusing to allow him bail.

Section 5 of our Constitution safeguards the right to liberty such that no one may be deprived of his
freedoms except in accordance with the law and the exceptions thereto have been limitatively set
out in that same section. Section 5(3) of the Constitution makes it clear, that a person who is
detained upon suspicion of having committed a criminal offence may, under our law, not be
released, since that subsection lays down, in fact, the rights of such a person who is not released,
including, inter alia, the right to be released with or without conditions if he is not tried within a
reasonable time. In the same breath, Section 4 of the Bail Act contains a presumption in favour of
liberty.

When an accused is brought before Court in the matters of bail ,the question which the court has to
ask is not whether I should grant bail or not, but whether I can refuse bail to the applicant. No
encroachment on personal liberty of a citizen in civil society governed by rule of law could be
justified unless there are compelling reasons for doing so.

Before it can be said that there is any likelihood of justice being frustrated through an accused
person resorting to evade his trial, there should be some evidence or some indication which touches
the applicant or accused person in regard to such likelihood. It is therefore incumbent on the
prosecution to affirmatively prove why the court should temporarily or otherwise deprive a detainee
of his liberty and such proof must be devoid of speculation and must be based on ascertained facts.

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In the course of a bail application this Court does not have to make a finding, even on a provisional
basis, as to the guilt or innocence of an applicant for bail. All the Court has to do is to weigh the
prima facie strength or weakness of the State’s case and such a decision ought not to be made with
regard to credibility findings in order that bail proceedings do not become a dress rehearsal for the
trial itself.

At the outset of my deliberation, I would wish to underline that this Court finds no merits in the third
ground of appeal, since the evidence adduced to sustain same has been remarkably weak and as
conceded by Ps Edouard, this ground is purely based on apprehensions. No evidence has been put
forth to sustain same. I therefore do not find it worthy to dwell on this ground of objection any
longer and it is ousted outright.

After considering the matter conscientiously having taken into account the morals of the applicant,
his home, his occupation, his assets, his family ties and all kinds of links with the country in which he
is being prosecuted which may either confirm the existence of a danger of flight or make it appear so
small that it cannot justify detention pending trial, I hold that applicant’s flight risk is high.

To start with, applicant has no fixed place of abode. He was stubborn enough to argue that he had
two houses, one at Bamboo Villa and one at Petit Gabriel. However during the course of the hearing,
evidence was adduced to the effect that applicant had not been residing at Petit Gabriel for the past
seven months or so and it has neither been rebutted that applicant’s marriage was in tatters and
that divorce was being considered. This effectively puts the applicant in a bad situation, since there
is ample evidence that he is currently living with her concubine ever since he left his conjugal roof.
All this to conclude that I am far from being satisfied that applicant can claim that he also resided at
Petit Gabriel or that he had any ties there. Unfortunately the misfortune of the applicant does not
end here. He conceded at some point that he would have to vacate his present address since his
landlord has given him express notice to do so. I therefore hold that applicant, on top of having no
strong ties, has no fixed place of address which could have circumvented his flight risk. Furthermore
there is no evidence that accused has any children or any other strong community ties which could
have averted that risk. It has been mentioned that accused had a job but no evidence has been
furnished about that at all so that I am left in the dark about his ‘investment’ or his involvement in

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his job. It is known that one who has nothing has nothing to lose. And in this instance, not much of
evidence has been adduced to explain the personal circumstances of the applicant.

Prosecution also relied heavily on the seriousness of the charge brought against the appellant. True
it is that the seriousness of the charge brought against an accused is one of the factors to be
considered by the court. Fear is a natural instinct in human beings, so that generally speaking, the
more serious the offence and the sentence it may call for upon conviction, the greater the likelihood
that an accused would be disposed to abscond.

The law gives the court a real discretion in the matter. While the seriousness of the charge is a factor
to be considered by the court, all the facts of the particular case should be examined and it is only
where the court is satisfied that -the interests of justice require otherwise that an accused person
should be refused bail. It is also to be noted on this point that bail must not be withheld merely as a
punishment to the accused person. Decided cases abound with statements to this effect.

Taking into account the seriousness of the offence, the heavy penalty it carried coupled with the fact
that applicant has no fixed place of abode I hold that the prosecution has full substantiated there is a
risk of flight of the applicant should he be released on bail. I therefore find that the apprehensions of
the police are fully justified.

This being said I will nonetheless canvass the second ground of objection as well.

In the case of Deelchand v. The Director of Public Prosecutions and Others (2005) SCJ 215 the
Supreme Court 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

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connection thereof where appropriate, should be given to establish the probability of interference
with that witness by the applicant.

In his book “Bail in Criminal Proceedings” (1990), Neil Corre, writing from sound practical
experience, points 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”. He then goes on to point out:

“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…..”

“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” vide Deelchand
(supra).

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This Court notes that the reason put forward by the prosecution to justify the applicant detention on
that ground is based on the fact that all statements have not been recorded from crucial witnesses
involved in the case and due to the degree of familiarity of the applicant to the witnesses, he may
interfere with these witnesses. I find this a valid justification as a risk of applicant interfering with
witnesses, especially since applicant is closely related to the witnesses.

Having found that both grounds of objection have been amply substantiated by the Prosecution, the
question remains whether his right to liberty coupled with the presumption of innocence should
make the balance tilt in favour of granting him bail. And I hold not. I am of the view that no
conditions if imposed can reduce or curtail the risks of the applicant absconding or of him interfering
with witnesses.

In the light of the above findings, I hold that the continued detention of the detainee is fully
warranted in this case and bail is therefore refused.

The Prosecution authorities are reminded to act diligently and to see to it that the case against
accused is lodged without any undue delay before the appropriate forum.

Meenakshi Bhogun-Ramjutton
Magistrate for Rodrigues
Delivered on 23 January 2014