Police v Jean Bruneau Laurette

2023 MOK 3

PCN: 1212/22

PCN: 1213/22

In the District Court of Moka

In the matter of:-

Police

Jean Bruneau Laurette

RULING

1. In Case PCN 1212/22, the applicant is provisionally charged with possession of Cannabis
Resin for the purpose of selling with averment of trafficking (Count I) and Money
Laundering (Count III). Count II for possession of Synthetic Cannabinoids for the purpose
of selling with averment of trafficking has been struck out against the accused. In Case
PCN 1213/22, he is provisionally charged with possession of firearm in breach of section
35 of the Firearms Act.

2. The three grounds of objection to releasing the applicant on bail of the prosecution are
as follows:
i. Risk of absconding
ii. Risk of interfering with witnesses
iii. Tampering with evidence

Facts of the case

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 3. The facts of the case, as disclosed by the evidence on record is that on 4 th November
2022, by virtue of a search warrant, police searched the premises and the car of the
applicant at his place of residence in Petit Verger, St Pierre. Police secured the following
items from the applicant’s bedroom: one satellite phone, one revolver, six live rounds and
a sum of Rs 81,200. The revolver and the six live rounds were found under a mattress.
An antique pistol was secured from his living room and lastly forty-five plastic parcels
containing substance suspected to be drugs from the boot of his car which was parked in
his open garage. The drugs weigh 44.27 kg and the total value of the drugs was estimated
at Rs 221,235,000.

The Law

4. Every defendant or detainee shall be entitled to be released on bail.1 A court may then
refuse to release the detainee under section 4(1)(a) where:

“there is reasonable ground for believing 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.”

5. It is the court’s duty when considering whether to grant or deny bail, to weigh the interests
of society against the right of the detainee to his liberty and the prejudice he is likely to
suffer if he is detained in custody. Section 4(2) lists out the other considerations that the
court must bear in mind when deciding whether this case warrants pretrial detention. This
includes:

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;

1
Section 3 of the Bail Act 1999

2
 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
Value
6. Before delving into the grounds of objection, contentions were raised between prosecution
and defence as to the ascribed value of drugs in the provisional information. As per the
testimony of SP Rajaram, the Forensic Science Laboratory ascertained the weight of the
drugs and its value was determined by the ADSU, in absence of a purity test being carried
out on them. A request for same was only sent to the Forensics Scientific Laboratory at
the beginning of January 2023 and a further report is still being awaited. Whilst bearing in
mind that we are at a provisional stage and the large amount of drugs secured, I am of
the view that the court is perfectly entitled to rely on its given worth. The exact nature of
the substance has been confirmed as Cannabis Resin by the Forensic Science Laboratory
and remained uncontested by the defence. I believe that the ADSU being in their field of
expertise, are qualified and competent to carry out an evaluation process of the said drugs.

Nature of evidence

7. The principle which is well-recognized in Maloupe M.G. v The District Magistrate of

Grand Port 200 SCJ 223 for bail at pre-trial stage is that if conditions may be imposed
upon the detainee to reduce the risks to a negligible level, bail is to be allowed. “There is
yet one further consideration which our courts have been prepared to weigh in the
balance: if the evidence is, by its nature, unreliable, the presumption of innocence should
weigh more heavily in the balance in favour of the applicant’s release on bail.

8. It is important to understand the meaning of nature of evidence as set in section 4(2)(d) of

the Bail Act. Its examination at the bail stage “should not be a doorway for looking in detail
at the evidence itself as opposed to the surrounding circumstances which have a bearing
upon its quality. Witnesses in the course of the hearing of an application for bail should
only be allowed to depone as to the “nature” i.e. the kind of evidence available (including
external circumstances which have a bearing on its quality) and not as to the actual precise

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 evidence of the police.”2 It is therefore understood that the court should not make a
detailed analysis or evaluation of the evidence before it.

9. As repeated in Labonne JV v Director of Public Prosecutions & Anor 2005 SCJ 38,
the court must not examine the evidence in a time-consuming and detailed manner whilst
assessing the quality of evidence. It is not for this court, at the stage of a bail hearing to
assess the credibility of any version and make any pronouncement as this will be for the
sovereign appreciation of the trial court.3 It is neither the duty of the court to determine
whether there was a prima facie case against the applicant.

10. What we have on record is that accused has denied that the drugs were his and relied on
the defence that the drugs were in fact planted. The court is alive to the accused’s version
of facts which was put forward by him in his testimony and the surrounding circumstances
of the present matter to support this possibility. As mentioned above, there are however
repetitive pronouncements which point to the fact that it is not appropriate for the court in
a bail application to go into detail about the precise evidence that the prosecution has
against the accused and thereby determine his guilt or innocence. Nevertheless, the court
agrees with prosecution that the absence of DNA, fingerprints or gloves cannot be relied
upon to conclude that the nature of the evidence is weak.4 Likewise, the mere fact that
CCTV Camera and video footage from the Traffic Surveillance have been obtained by the
police does not necessitate the court to adjudicate upon same when considering the
nature of the evidence.

11. I cannot disregard the fact that a large quantity of drugs and incriminating items were
secured at the place of the suspect. The substance was confirmed to be dangerous drugs,
more specifically Cannabis Resin by the FSL and this type of drug is classified under the
Part II of the first Schedule of Dangerous Drugs Act. It is also undisputed that the accused
was on the premises when he was arrested. I therefore conclude that the evidence is of a
strong nature in view of the sufficient and reliable evidence of prosecution.

2
Maloupe M.G. v The District Magistrate of Grand Port 200 SCJ 223
3
Director of Public Prosecutions v Aubert 2020 SCJ 214
4
Refer to The Queen v Crawford (Cayman Islands) [2015] UKPC 44 – “DNA deposited may sometimes
persist and sometimes may not”

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Risk of absconding

12. There are numerous cases which reiterate that the seriousness of the offence and the fact
that the accused may face a severe penalty are not reasons which can be solely relied
upon to refuse bail. In Deelchand v The Director of Public Prosecutions & Ors [2005
SCJ 215], the Supreme Court noted that whilst bearing in mind the severity of the
sentence, this risk had to be evaluated by also taking into consideration other factors
including the detainee’s criminal record, his family, community, professional or
occupational ties and financial commitments. Reference was made to Neumeister v
Austria (1968) 1 ECHR 91 (27 June 1968) where the Court also took into account issues
“relating to the character of the person …and all kinds of links with the country in which he
is being prosecuted”

13. In assessing the possibility that the detainee may abscond, the court must also consider
other matters such as:

“[i]. The stage at which proceedings have reached;

[ii]. The contacts that the accused party has abroad with accomplices who can help him
to travel abroad and take refuge outside our jurisdiction;
[iii]. The means that he has to effect payment in order to meet the expenses of organising
and carrying out the act of absconding, especially if it involves leaving the country.” 5

Prosecution’s case

14. To substantiate this ground of objection, SP Rajaram, deputed by the Commissioner of

Police, explained that the charge concerned is drug dealing for the purpose of selling with
an averment of trafficking. An eventual prosecution will be heard before the Supreme
Court and a finding of guilt carries a heavy penalty. There are also other relevant factors
which the police believe are sufficient incentives for the applicant to abscond and fail to
surrender to court where and when required. He testified that the applicant:

5
Director of Public Prosecutions v/s Louis Jimmy Marthe 2013 SCJ 386a

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 i) is a sea marshall
ii) a maritime security leader
iii) has escorted maritime vessels from one port to another
iv) has admitted to having a vast knowledge in the maritime domain
v) has established a network of contacts to facilitate his escape.

Defence’s case

15. As per the submissions of defence, the risk that the applicant may abscond was not well
founded when considering the fact that the applicant has strong family ties and a fixed
place of abode. Emphasis was laid on the fact that he has strong links with the Mauritian
society. Being a social activist and politician, it was further adduced that the applicant
organized and also participated in several important marches and radio talks.

Court’s Analysis

16. I bear in mind the seriousness of the offence whilst also taking into account the other
factors relevant in assessing the detainee’s potential risk of flight. I take note of the amount
of drugs secured in the applicant’s car and the fact that the enquiry is still ongoing. The
fact that the applicant has no boat, does not by any means suggest that he cannot flee
the country if he wishes to. As rightly referred by prosecution, the Supreme Court has
after all taken “judicial notice of the fact, that, in the recent past, there have been cases
where accused parties awaiting trial and persons convicted of drug offences have simply
left the country by hiring powerful boat…”6.

17. I have taken into consideration the applicant’s close bonds with his family and his country.
True it is that there is no evidence of applicant having tried to abscond or breached a bail
condition, the court cannot on the other hand ignore the following:

a) Applicant does not have settled employment

b) He lives mostly on donations

6 Director of Public Prosecutions v Louis Jimmy Marthe 2013 SCJ 386a

6
 c) He does not own any property in Mauritius
d) He has a vast experience of the sea having worked offshore for several years
e) He has admitted to having international contacts in Seychelles.

18. Whilst taking into consideration the nature of the evidence against him, the seriousness
of the offence and high penalty upon conviction, I am satisfied that the risk that accused
may abscond is plausible. One has to keep in mind the reasoning adopted in DPP v/s
Louis Jimmy Marthe 2013 SCJ 386a that:

“Mauritius is a small island having other islands as close neighbours. This is something
which is very specific to our country. It is very difficult, if not impossible, for the authorities
to keep the whole of the shores of Mauritius under constant surveillance.”

Risk of interfering with witnesses and risk of tampering with evidence

19. The Officer SP Rajaram testified that the risk of interfering with witnesses and tampering
with evidence are inextricably linked. These two grounds of objection will be dealt with
together accordingly. It has been well established that the court will not refuse bail on the
basis that the enquiring officer simply fears that the applicant may interfere with the
witnesses. There must be a serious risk and “satisfactory reasons, and appropriate
evidence in connection thereof where appropriate, should be given to establish the
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probability of interference with that witness by applicant.” The Supreme Court in
Deelchand (Supra) laid out various examples and I will not cite them all. The most
relevant ones to the present matter are:

a) 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;
b) it is believed the defendant will intimidate or bribe jurors;
c) other suspects are still at large and may be warned by the defendant.

7 Deelchand v The Director of Public Prosecutions & Ors [2005 SCJ 215]

7
 The exception does not apply simply because there are further police enquiries or merely
because there are suspects who have yet to be apprehended”

20. Therefore, prosecution cannot simply rely on the fact that the enquiry is not complete to
sustain their grounds of objection. The court must be satisfied that the applicant “will
impede the completion of the enquiry, for example, by reason of the likelihood that the
suspect will abscond or will interfere with witnesses or destroy evidence.”8

Prosecution’s case

21. When SP Rajaram deponed under oath on the 7th December 2022, he explained that two
laptops and two cellular phones were also secured by the police. He was of the view that
these electronic devices contained important digital information which would lead to
potential witnesses or even other protagonists involved in this drug transaction. According
to him, these devices also held material evidence which could be tampered with and also
destroyed. The fact that applicant did not consent to the examination of these electronic
devices showed that he was trying to conceal material facts. The quantity of drugs found,
together with the satellite phone and firearm, led police to believe that there was an
ongoing drug operation. He further averred that police were also working with international
organisations to establish the identity of the suppliers of these drugs. Therefore, the officer
was of the opinion that if the detainee was admitted bail, he would interfere with these
witnesses and protagonists known to the applicant, thus jeopardising the police
investigation. Lastly, he relied on the fact that an unmatched DNA was found on one of
the bags containing the drugs.

22. During the bail hearing, it came to light that an entry was made at the police station on
12th November 2022 where the suspect did not refuse that the electronic devices be
examined by the police but rather requested for them to be done after he had given his
statement to the police. It is worth noting that on 12th December 2022, the applicant was
however willing to allow the police to inspect the devices immediately, including his
satellite phone and his bank accounts so as not to protract matters. The bail hearing was

8
Hossen v District Magistrate of Port Louis 1993 MR 9

8
 then fixed proforma on 9th January 2023 at the request of his counsels whilst the enquiry
progressed. Up to now, the itemized bills and financial statements are still being awaited.

23. The bail hearing was then proceeded with on 16th January 2023. Following the consent of
the applicant, under cross examination, the supervising officer further explained that every
single digital data from the electronic devices was being investigated. A judge’s order had
been obtained and conveyed to the service providers. SP Rajaram then clarified that his
fear that applicant may tamper with evidence and interfere with witnesses was not only
due to his previous lack of consent but that his assumption was also based on the amount
of drugs and exhibits secured at the suspect’s place.

Defence

24. The following can be gathered from the cross examination of the Supervising Officer:
a) There is no evidence that applicant has threatened or intimidated a witness.
b) Police did not know any names nor the whereabouts of any witnesses.
c) The applicant himself made a request by letter for police to apply for a judge’s order
for call listings and data sessions.
d) As at today, there is no incriminating evidence in the mobile phones, satellite phones
and computers.
e) There is the possibility that there is no material information on the electronic devices
once examined.
f) There is no certainty from the part of the police that the electronic devices will lead to
other protagonists.
g) The electronic devices together with the drugs and exhibits are secure and in police
custody.

Defence was also of the view that the principles which govern the risk of interference with
witnesses and tampering with evidence are that the risks must be identifiable and not
merely generalized and this was not the case in the present matter.

Court’s Analysis

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 25. “I have taken into consideration the case of Hurnam v The State [2005 UKPC 49], where
it was held that “a person charged with a serious offence, facing a severe penalty if
convicted, may well have a powerful incentive to abscond or interfere with witnesses likely
to give evidence against him, and this risk will often be particularly great in drugs cases.
Where there are reasonable grounds to infer that the grant of bail may lead to such a
result, which cannot be effectively eliminated by the imposition of appropriate conditions,
they will afford good grounds for refusing bail.

26. On the other hand, it is clear that the police must not simply express its concern that an
applicant might abscond or interfere with witnesses when resisting bail. There must be
material indicating a serious danger, as opposed to a mere possibility, of the risk
materialising.9

27. I have perused all the evidence on record, including the submissions of both parties.
Considering that the applicant has given his consent to have all the electronic devices and
bank statements analysed, the police can therefore only rely on the drugs, the exhibits, a
further analysis of the IT and ICTA reports which might or might not contain crucial
information. I find it apt to reproduce an extract from Deeljore A v The Commissioner
of Police & Ors 2021 SCJ 231, where in this particular case, there was only-

“a mere statement from the police that the applicant knew suspects who had yet to be
interviewed and arrested. There was no real basis put forward before the BRC on
which the police reached that conclusion. In fact, the contact numbers in the
applicant’s mobile phone six months after her arrest had yet to be retrieved. It was
also disclosed that the identity of the callers had yet to be subject to an order of the
court. Notwithstanding the missing information as to the identity of other suspects and
the police not explaining in what manner applicant could interfere with those
witnesses”, the court concluded that there was no such risk.

Whilst bearing in mind that the applicant has voluntarily given access to all his electronic
devices to retrieve list callings and data sessions, I find it difficult to reach the conclusion
that the suspect wishes to “conceal material facts” as believed by the supervising officer
in his examination-in-chief.

9
Labonne JV v Director of Public Prosecutions & Anor 2005 SCJ 38

10
 28. Reference is made to Nobaub v Commissioner of Police v Ors 2022 SCJ 246 where
the court held that the fact that “the police were waiting an IT report to know if other
suspects are involved, are not strong justifications for the applicant’s continued detention.”
The court then concluded that this ground of objection had not been substantiated as “no
evidence of actual interference with witnesses has been adduced by the prosecution and
no satisfactory reasons advanced by the prosecution to justify that the possibility of such
risk of interference exists”

29. Up to now, no further reports have been obtained and the examination of the electronic
devices ended since 15th December 2022. I am of the opinion that the reservations of the
police are not based on any tangible information. Moreover, all the exhibits have been
duly examined by the police and are still in their safe custody. One must not forget that it
is for the police to demonstrate that continued detention is necessary and justified.
I am therefore not convinced that there is a strong likelihood that, if released, the applicant
will interfere with witnesses or tamper with evidence.

Conditions to render risks negligible?

30. The court has the duty to carry out a balancing exercise when deciding on whether bail
should be granted or not to the detainee. What must be carefully considered is “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 the criminal which he is
suspected to be.”10 As reiterated in Lutchigadoo K. the Commissioner of Police & Ors
2020 SCJ 160, the court has to be reminded that “a balance must be struck between, on
the one hand the need for the applicant’s continued pre-trial detention and, on the other
hand his constitutional right to personal liberty and presumption of innocence.”

Labonne JV v Director of Public Prosecutions & Anor 2005 SCJ 38 referring to Maloupe M.G. v
10

The District Magistrate of Grand Port 200 SCJ 223

11
 31. Case law points to the fact that “bail is the rule and pre-trial incarceration the exception.
Incarceration needs must be grounded on legitimacy.11 In the same perception, the
rationale in Sheriff Y. v The District Magistrate of Port Louis [1989 MR 260] is that “our
law relating to the freedom of the individual and the restriction on his liberty should not be
interpreted in such a way that arrest and detention become the rule and freedom the
exception…It is only in exceptional cases that the liberty of the subject can be
subordinated to the greater needs of society requiring the forfeiture of his freedom.” The
Supreme Court in Seewoochurn KM v The Commissioner of Police & Ors 2019 SCJ
189 went on further by making reference to the Eur. Court HR, case of Van der Tang v
Spain, judgment of 13 July 1995 that for “cases involving pre-trial detention of a person
accused of drug trafficking” and where there is “the existence of a strong suspicion of the
involvement of the person concerned in a serious offence, while constituting a relevant
factor, cannot alone justify a long period of pre-trial detention.”

32. Even where the available nature of evidence against the accused is reliable, the latter may
still be released on bail “if the imposition of the conditions reduces 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.”12 Having found that there is a risk of
absconding, the court needs to decide as to whether the imposition of strict conditions can
reduce this risk negligible, that is, of an acceptable level.

33. I bear in mind the particular facts of the case and the personal circumstances of the
applicant who gave his testimony under oath. He has a partner, four children and will be
a grandfather soon. As per the evidence of his ex-wife, the mother of his youngest
daughter, he has a strong relationship with his daughter and is financially responsible for
her. She testified that the suspect also takes part in taking their daughter to her extra-
curricular activities on Saturdays and tries to see her at every opportunity. He chose to
reside at Petit Verger to be close to his youngest child. The other children who are under
his sole responsibility since their mother passed away, are all under his roof. His strong
ties to the society and the country cannot likewise be considered as immaterial whilst

11
Islam S. v Senior District Magistrate, Grand Port District Court 2006 SCJ 282

12 Maloupe M.G. v The District Magistrate of Grand Port 200 SCJ 223

12
 carrying out the balancing exercise. Lastly, the detainee also gave his assurance that he
would abide to all the conditions imposed by the court should he be released on bail.

34. Having assessed all the evidence on record and the principles of the rationale of bail, I am
of the view that the risk of absconding though plausible, can be minimized to an acceptable
level with stringent conditions being imposed. I cannot however ignore the serious
allegations made against him and the amount of drugs involved in the present matter. I
am of the view that stringent conditions must be imposed to ascertain his daily movement
and ensure that he does not take flight. I understand the legitimate concerns of the police
on the proliferation of guns and drug related criminal activity. In view of the fact that the
enquiry is not complete, I have also further included certain conditions to safeguard the
enquiry being made against him. The court therefore concludes that the constitutional right
of the applicant to be released on bail outweighs the need for him to be continuously
detained. I grant him bail on the following conditions for Case CN 1212/22:

(i) The applicant shall provide two sureties in the sum of Rs 1 million each by bank
cheque.

(ii) The applicant shall enter into a recognizance in the sum of Rs 50 million in his
own name.

(iii) The applicant shall reside at a fixed and permanent address indicated by him,
the address of which he shall communicate to the police.

(iv) The applicant shall report to the nearest Police Station, twice daily, once
between 6 00 hrs and 11 00 hrs and once between 15 00 hrs and 19 00 hrs

(v) Applicant is to respect the following curfew hours when he will have to remain
at home (8 p.m. to 5 a.m.) daily. He is therefore to remain at the address
provided to the police during those hours. In case of 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;

(vi) The applicant shall inform the police of his daily activities and whereabouts
every time that he reports at the police station;

(vii) The applicant shall submit a mobile phone to the relevant police department
for either (a) the GPS system to be activated or (b) a tracking tool/ app/ device
to be installed on the said mobile phone by the police. The said mobile phone
is to physically remain with the applicant at all times and the relevant mobile

13
 number is to be provided to the police and should remain switched on for
the applicant to be reachable at all times;

(viii) The applicant is not allowed to make international phone calls by any means.
(ix) The applicant is not to approach any seashore of Mauritius by a radius of 500
meters.

Bail is also granted for Case PCN 1213/22 on the following conditions:

(i) The applicant shall provide a surety of Rs 50,000 by bank cheque.

(ii) The applicant shall enter into a recognizance in the sum of Rs 200,000 in his
own name.

(iii) The applicant shall reside at a fixed and permanent address indicated by him,
the address of which he shall communicate to the police.

(iv) The applicant shall report to the nearest Police Station, twice daily, once
between 6 00 hrs and 11 00 hrs and once between 15 00 hrs and 19 00 hrs

(v) Applicant is to respect the following curfew hours when he will have to remain
at home (8 p.m. to 5 a.m.) daily. He is therefore to remain at the address
provided to the police during those hours. In case of 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;

(vi) The applicant shall inform the police of his daily activities and whereabouts
every time that he reports at the police station;

(vii) The applicant shall submit a mobile phone to the relevant police department
for either (a) the GPS system to be activated or (b) a tracking tool/ app/ device
to be installed on the said mobile phone by the police. The said mobile phone
is to physically remain with the applicant at all times and the relevant mobile
number is to be provided to the police and should remain switched on for
the applicant to be reachable at all times;

(viii) The applicant is not allowed to make international phone calls by any means.

(ix) The applicant is not to approach any seashore of Mauritius by a radius of 500
meters.

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Jade Ngan Chai King
Senior District Magistrate
21/2/23

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