R v Dodin and Anor (CM 2 of 2023) [2023] SCSC 247 (23 March 2023)

ADELINE J

1. This is a ruling on an application by The Republic, made by way of notice of motion supported by an affidavit dated 22nd February 2023 pursuant to Section 179 of the Criminal Procedure Code read with Article 18 (1) of the Constitution , for an order of this court remanding the 1st  and 2nd  Respondents/ 1st and 2nd Accused’s in Police custody, and a counter-application also made by way of notice of motion supported by two affidavits, one sworn by the 1st  Applicant/ 1st Respondent, the other by the 2nd Applicant/ 2nd Respondent, for them to be released from Police custody and to be remanded to conditional bail.

2. The application by The Republic, is in substitution to the previous application made by The Republic dated 16th February 2023 for the remand of the 1st and 2nd Respondents / 1st and 2nd Applicants in Police custody, and which because of the failure by the 1st  and 2nd Respondents / 1st and 2nd Applicants to reply to the application, on account of the uncontroverted affidavit evidence in support of the application for remand, remanded both, the 1st and 2nd Respondents / 1st and 2nd Applicants in Police custody.
3. The Republic, having now filed a substitute application for remand dated 23rd February 2023 supported by an affidavit, seeks for an order of this court for the 1st and 2nd Respondents / 1st and 2nd Applicants to be remanded in Police custody.

4. In Reply to The Republic’s application, the 1st and 2nd Respondents / 1st and 2nd Applicants have filed their counter-application by way of notice of motion supported by their individual affidavit for their release on conditional bail.

5. The applications followed a formal amended charge pertaining to CB No 180/01/23, Anse Aux Pins, filed in court on the 22nd February 2023 against the Respondents/Applicants/Accused’s. The 1st and 2nd Respondents /Applicants /Accused’s is charged with the offence of which the statement of offence reads;

COUNT 1

Agreeing with another person or persons to commit the offence of Importation of Controlled Drug contrary to Section 16 (1) (a) as read with Section 5 of the Misuse of Drugs Act, 2016 and punishable under Section 5 as read with the Second Schedule of the Misuse of Drugs Act, 2016.

The Particulars of the offence as summarily narrated in the formal charge sheet read as follows;

“Leonel Didon of Cascade, Mahe and Jean Hugh Simeon of Anse Boileau, Mahe on a date unknown to The Republic in the year 2023, agreed with another that a course of conduct shall be pursued which if pursued will necessarily amounts to or involve the commission of an offence of conspiracy to import a controlled drug from Sierra Leone to Seychelles whereby a controlled drug, namely Cocaine having a net weight of 597.78 grams was imported into Seychelles on the 31st January.”

6. The application filed by The Republic for an order of this court to remand the 1st and 2nd Respondents / 1st and 2nd Applicants in Police custody, is supported by an affidavit sworn by Police officer, Sub Inspector (SI) Johnny Malvina of the Seychelles Police Force. In his sworn affidavit, SI Malvina states the grounds upon which he seeks for remand to be the following; 

“(a)     The offence that the Respondents have been charged with is conspiracy to import a controlled drug, a serious offence that carries a sentence of life imprisonment and a fine of SCR 1 million on conviction.

(b)       The modus operandi employed by the Respondents are highly organized involving an organised criminal operation internationally with local involvement which is an aggravated offence under Section 48 of the Misuse of Drugs Act,2016. The Police along with other law enforcement institutions locally and internationally needs to conduct in depth investigations to eliminate the transnational drug network from Sierra Leone and Seychelles.

(c)       That there are still pertinent exhibits such as the phone used in communication to be analysed. Thus the Police require more time to retrieve the necessary information without interference.

(d)       The offence is very serious in nature and complex with several persons appearing to be involved in a conspiracy to Import a controlled drugs in well-organized fashion and additional time is required for the Police to carry out the investigation of the wide network of such organized crime.

(e)       In view of the further investigation that the Police has to carry out, if the application is refused and the suspects are granted bail there is strong likelihood that the suspects will interfere with the investigation and obstruct the course of justice

(f)        That one of the Respondents herein have cooperated with the Police and is now in fear of his safety. Hence the need to protect them in Police custody for their own safety.

(g)       There are reasonable grounds to believe that the commission of such offence involve more number of persons in Seychelles and if the Respondents are released on bail, there is high likelihood of interference with the on-going investigation in relation to those other than the Respondents herein.

(h)       That there are reasonable grounds to believe that the said Respondents will fail to appear for the trial and/or do other activity thus obstructing the course of justice, if released on bail considering the seriousness of the offence, severity of punishment for such offence and the allegation of one of the Respondents to the effect that he has been told by the other that it is better to flee the country in the given circumstances.

1. That drug offences are on steady rise and the related consequences are a menace on the health and wellbeing of the small island state with serious impact on the younger generation and its potential negative impact on tourism and image of the Nation in the international platform.”

7. As to the facts and circumstances that led to the arrest and charge of the Respondents / Applicants / Accused persons, it is averred by SI Malvina that, on Tuesday 31st January 2023, the police received credible and reliable information that a parcel containing suspected controlled drugs will arrive in the country on the same day on board Flight EK0705 31/01/2023, Dep: DUBAI SEZ (Seychelles).
8. The information received were conveyed to the Police based at the Airport Cargo Terminal for follow-up investigations and on the same day they came across that parcel. SI Malvina avers, that in the presence of a UPS clearing agent and customs officers, Police Officers examined the parcel which looked to contain spare parts and at the same time looked suspicious. The parcel was taken for scanning and it was detected, that inside the spare parts there was an unidentified object which the officers suspected were controlled drugs.
9. SI Malvina also avers, that following the authorisation of the Commissioner of Police for a controlled delivery operation to be conducted, the UPS clearing agent proceeded to deliver the parcel accompanied by Police Officers. On their way, they first went to the Mahe Shipping Office where the UPS office is located where the UPS clearing agent informed his supervisor of the controlled delivery operation.
10. It is further averred by SI Malvina, that on their way to deliver the parcel, Police Officers asked the agent to call the number 2793278 written on the parcel supposedly belonging to one Roody, Michel, Alcindor. The UPS clearing agent did and the phone was answered while a speaker mode. The UPS clearing agent was told by the person who answered the phone call to go to St Louis to deliver the parcel. Arriving at St Louis, the UPS clearing agent called the same number again and the person who answered the phone told him to turn back as he is still at Anse Royale and to wait for him at Providence around the PUC Station area.
11. SI Malvina avers, that the UPS clearing agent and the Police Officers went to Providence near the PUC Station and waited there. While they were there they received another phone call from the same number by which phone call the caller told the UPS clearing agent that he had “already passed by and had missed the lane, and has gone by straight” and to wait for him at Intel vision, Providence. The UPS clearing agent and the Police Officers proceeded there and waited. SI Malvina avers, that the 1st Respondent Leonel Dodin, upon noticing that there were Police Officers there fled the scene.
12. SI Malvina further avers, that there were Police Officers on standby at Providence who were being informed of the operation. They then decided to proceed to Eden Island to pursue the operation there. It is an averment made by SI Malvina, that when the UPS clearing agent accompanied by Police Officers were at Eden Island they received a phone call from one Hazel, phone number 2543892, whom the clearing agent told the Police Officers he knowns quite well and that her name is Hazel Mancienne because he used to deliver parcels to her. On the phone, Hazel told the UPS clearing agent that she has received a phone call from Leonel Dodin (the 1st accused) who asked her to collect a parcel for him which parcel is addressed to one Roody, Michelle, Alcindor.
13. It is also an averment made by SI Malvina, that thereafter, Police Officers handed over the parcel to the UPS clearing agent to be delivered to Hazel. Whilst the operation was underway, the Police Officers on standby were following the conversation on the open line communication. The UPS clearing agent then delivered the parcel to Hazel at her office at Eden Island and the Police Officers on standby were informed.
14. SI Malvina avers, that thereafter, Police Officers proceeded to the office of Hazel Mancienne. Once they were there they identified themselves as Police Officers and found Hazel Mancienne. Hazel Mancienne was asked about the parcel she had just received from the UPS clearing agent and she showed them where she had put it. After the Officers had got hold of the parcel, at 11:20 hrs, Hazel Mancienne was informed that she was being arrested for the offence of Conspiracy to Import a Controlled Drug. Hazel Mancienne was cautioned, informed of her constitutional rights and then taken to the Organised Crime Unit Station at Bois Des Rose for other formalities.
15. SI Malvina also avers, that at the station suspect Hazel Mancienne was interviewed under caution. In the interview, she revealed that she received a phone call from Leonel Dodin (the 1st accused) whom she knows well, and Leonel Dodin had told her to collect his parcel from the UPS clearing agent, and that she could only remember the name of Alcindor as the person on whose name the parcel was addressed to. SI Malvina avers, that suspect Hazel Mancienne also stated, that after receiving the parcel, she noticed the presence of Police Officers around and immediately phoned Leonel Dodin who in their conversation asked her whether she has already collected the parcel and if not, not to take it, and that she told him that she has already taken it.
16. SI Malvina further avers, that at the Station SS & CRB Officers took photographs of the parcel and in the presence of Hazel Mancienne, the parcel was cut open. The parcel was wrapped with LED coloured plastic with customs tape label on it and the name Roody Michelle Alcindor written on it. SI Malvina avers, that the parcel was found to contain a blue coloured box with drawings of gear parts on it.
17. The same was opened and found to contain a silver coloured pully. As averred by SI Malvina, the pully was opened and found to contain six packets, each was made of silver foil wrapping a blue carbon paper, further wrapping in clear plastic containing a whitish powder weighing approximately 600 grams suspected to be controlled drugs. SI Malvina also avers that preliminary test conducted on the whitish powder was found to be positive for cocaine.
18. It is averred by SI Malvina, that as further investigation continued,  two other persons were arrested, namely, Leonel Dodin (the 1st Accused) a 48-year-old self employed of cascade.  He  was arrested on the 2nd February 2023. Also arrested, was one Jean, Hugh, Simeon (the 2nd Accused) a 49-year-old farmer of Anse Boileau who was arrested at his residence also on the 2nd February 2023. It is also averred by SI Malvina, that as a result of the ongoing investigation, items have been seized from the two persons linking them with the alleged offence and that it has now been confirmed, that the whitish substance is 597.78 grams of cocaine.
19. It is further averred by SI Malvina, that Leonel Dodin, the 1st Respondent / 1st Applicant, did inform the police that it was the 2nd Respondent who gave him the SIM card number 2793278 for him to use for the purpose of him collecting the parcel, and when the police conducted a search at the 2nd Respondent’s / Applicant’s residence they found a paper written on it the number 2793278, which as a consequence, has led to both of them charged with the offence of conspiracy to Import a Controlled Drug.
20. In their affidavit in support of their joint application to be remanded to conditional bail, the 1st and 2nd Applicants, amongst other things, make the following averments;

“3.        I state I am objecting to the further order for me to be remanded in custody and apply that the court be pleased to release me on bail subject to the conditions.

4.         I state that I am advised by my attorney Mr. Daniel Cesar and verily believe that the application and supporting affidavit seeking my remand in custody is defective and lacking as there is no averment against me in regards to my involvement in the charges against me. On that basis, I state that the Republic cannot establish my involvement in any criminal offence and as such cannot seek for my further detention before the court despite having preferred a criminal charge against me.

5.         I state that on the basis of the above, I pray to the court to release me on bail subject to conditions, which I am willing to abide so as to secure my attendance before the court”.

21. At this juncture, it is worth mentioning, that the averments made by the 1st and 2nd Applicants / Respondents in their respective affidavit are similar in content. Although affidavit is evidence and that the application and counter –application is being determined on affidavit evidence, neither the 1st Respondent / 1st Applicant nor the 2nd Respondent / 2nd Applicant has been able to produce an affidavit containing averments that carry certain weight for the purpose of persuading this court that their application has merit and therefore, the court should grant the relief or prayer being sought for.
22. All that the Applicants seek to do, on advice of their Attorney, is to aver that the affidavit in support of the Republic’s application for remand is “defective and lacking as there is no averment against me in regards to my involvement in the charges against me”.
23. Learned counsel for the 1st Respondent / Applicant opted not to make any submission in writing or otherwise, and instead, adopted the submission of learned counsel for the 2nd Respondent / Applicant. In his submission, learned counsel for 2nd Respondent / Applicant quoted SI Malvina as having averred that “the 1st Respondent informed the Police that it was the 2nd Respondent who gave him the SIM card number 2793278 for him to use for the purpose of collecting the parcel”. Learned counsel submitted, that the affidavit in support of the application fails to state whether or not this is an offence, and that there is no averment that the 2nd Accused was in anyway involved in the commission of a criminal offence. Therefore, the 1st and 2nd Applicants / Respondents only criticised SI Malvina’s affidavit rather than to make a case for their release on conditional bail, and to discredit as well as rebut the averments made by SI Malvina in his affidavit in support of the Republic’s application for remand.
24. It looks as if they have not read the averments in SI Malvina’s affidavit or they have done so but ignored its content. Therefore, the materials available to the court to determine whether the 1st or 2nd Respondents / Applicants are to be remanded in Police custody or remanded to bail, is the affidavit of SI Malvina. Learned counsel went on as to say, that the offence of which the 2nd Respondent / Applicant has been charged is conspiracy but the affidavit of SI Malvina does not contain any averment as to who are involved in the conspiracy. Learned counsel submitted, that for this reason, he sees the affidavit to be lacking in substance and create doubts amid the request for the court to exercise its discretion to take away his client’s right to liberty which he said is a fundamental right offered to him by the constitution.
25. It is the submission of learned counsel, that the right to liberty under Article 18 of the constitution means, that when someone charged with an offence is brought before the court, the primary consideration for the court is to release on bail, and that remand in Police custody should be the secondary consideration. That, according to counsel, should be the case only when the court is satisfied, based on the affidavit evidence, that the case for remand is made out.
26. Learned counsel submitted, that the court has on various occasions reminded the prosecution, that it is not enough to simply say that someone must be remanded in Police custody because he has been involved in the commission of an offence. Learned counsel also submitted, that it must be shown, that there are substantial grounds for remanding the person charged in Police custody and that in respect of the 2nd Respondent / Applicant these grounds as claimed are not made out for the court to exercise its discretion and remand the 2nd Respondent / Applicant in Police custody, thus denying him of his right to liberty. Learned counsel added, that some of the grounds upon which the Republic seeks for remand are not grounds under Article 18 (7) of the constitution whilst others are not substantiated by facts.
27. It is the submission of learned counsel, who appears to agree, that the alleged offence of which the 2nd Respondent / Applicant is charged with is serious although the seriousness of the offence alone cannot be good reason to denied someone his right to liberty this having been made clear in the case of Beharry. As regards to the averment that if the 2nd Respondent / Applicant is released on bail he will interfere with witnesses and obstruct the course of justice, learned counsel submitted, that there is no factual basis for this averment, and that the affidavit should have at least provide some substance to support this assertion. In essence, learned counsel submitted, that the averments in the affidavit in support of the application to have the 2nd Respondent / Applicant remanded in Police custody are not substantiated to deprive the 2nd Respondent / Applicant his rights to liberty and as such, the case for remand is not made out.
28. Learned counsel submitted, that the very reason for remanding someone in Police custody post charge, is for him to attend court each and every time the case is called, but not to punish him, and in that regard, the 2nd Respondent / Applicant can be released on bail on certain conditions in order to secure his appearance in court. Learned counsel proposed, amongst other things, the provision of sureties, subject the 2nd Respondent / Applicant to a curfew, requiring him to report to the nearest police station on a given day and time and a condition that he does not interfere with potential witnesses. In conclusion, learned counsel for the 2nd Respondent / Applicant had this to say;

“….as I stated, the application is not substantiated, it is lacking in substance and on that basis, I urge the court to consider releasing them on bail subject to stringent conditions”

29. In reply, learned counsel for the Republic informed the court, that the Republic relies on its application and the supporting affidavit. Learned counsel did, however, repeat some of the averments in SI Malvina’s affidavit and comment on certain aspects of learned counsel for the 2nd Respondent’s / Applicant’s submission. For example, the significant of the use of the SIM card number which was given to the 1st Respondent / Applicant by the 2nd Respondent / Applicant to facilitate the collection of the parcel containing the controlled drugs, and because that information was made known to the Police by the 1st Respondent / Applicant who corporated with the Police, there is a fear that his safety might be in danger given that it is suspected that there are other persons who have been involved in these transactions.

DISCUSSION OF THE FACTS AND LAW

30. Generally, the grant or refusal to grant bail lies within the unfettered discretion of the court. The grant or denial is determined by way of application of the law, and to a large extent, by the facts and circumstances of each particular case. But at the same time, the right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping the accused pending the trial, and at the same time, to keep the accused constructively in the custody of the court to ensure that he will submit to the jurisdiction of the court and be in attendance thereon, whenever his presence is required.
31. In that regard, therefore, an application to have the 1st and 2nd Respondents / Applicants remanded in Police Custody strikes at the core of the most important constitutional right of every person which is the right to liberty guaranteed under Article 18 (1) of the constitution. This right is afforded to every person whether the person is a Police Officer, a Banker, a Labourer, a Teacher and so forth. There are a plethora of rulings, including the ruling in Esparon v The Republic SCA 1 of 2014, where the court has emphasised, that such right to liberty can only be interfered with where the prosecution has satisfied the court, that there are substantial grounds to remand the accused in police custody.
32. At this juncture, I do feel the need to be conscious of Article 19 (2) of the constitution which says that “every person who is charged with an offence is innocent until the person is proven guilty or has pleaded guilty”. In fact, it is my considered opinion, that this is the premise from which this application for remand should be decided taking into account of the whole facts and circumstances of the case on account the materials laid before this court, particularly, the supporting affidavit to the motion.
33. Therefore, within the background of what have been said in the proceeding paragraphs, it was imperative for the prosecution, in seeking to rely on the averments made in the supporting affidavit to the motion to have 1st and 2nd Respondents / Applicants remanded in Police custody, to establish a prima facie case of the existence of the conditions under Article 18 (7) (a) to (e) of the constitution if the application is to be successful.
34. This is in line with the requirements of the guidelines spelt out in Beharry v The Republic SCA 11 of 2009, in which case the court had this to say;

“to support detention, the prosecution must demonstrate a Prima facie case against the accused then the court should determine whether the defendant may be released with or without conditions for the purpose of ensuring that the defendant appears on a subsequent date. The seriousness of the charge requires the consideration of the facts of each particular case and the evidence of the prosecution gathered so far. This is in dependent of consideration such as whether there may be interference with witnesses or there is a breach of bail conditions.”

35. As part of the guidelines in Beharry (Supra), the court endorsed the proposition, that continued detention can be justified in a given case, if there are specific indication of a genuine requirement of public interest which notwithstanding the premise of innocence until proven guilty or plead guilty outweighs the respect of individual liberty. Furthermore, and perhaps most significantly, the court indicated that when considering an application of this nature made pursuant to Section 179 of the Criminal Procedure Code as the instant one, it is incumbent of the prosecution to demonstrate the existence of a prima facie case which term is Latin meaning “the case at first sight”.
36. The permitted scope for the denial of the right to liberty has also been recognised internationally, notably, in the House of Lords in O (FC) Appellant vs Crown Court at Harrow (Respondent), an appeal from the high court of justice. In that case, the court quoted and endorsed a short passage from the court’s decision in Ilijkov v Bulgaria, one of the Strasbourg’s case law that reads as follows; -

“84 the court reiterates, that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which notwithstanding the presumption of innocence outweighs the rule of respect to individual liberty … where the law provides for a  presumption in respect of factors relevant to the grounds for continued detention … the existence of the concrete fact outweighs the rule of respect of individual liberty must be nevertheless convincingly demonstrated”

37. In essence, the prosecution carrying the burden of proof had only to present evidence to create a buttable presumption that the allegations as averred are true. As such, the standard of proof that the prosecution must have satisfied the court at a prima facie stage is lower than for proof of the accused guilt. Therefore, having said that, it is my considered opinion, that if a prosecutor cannot establish a prima facie case in a given case, that almost certainly means, that the Police did not have probable cause to support the arrest of the accused persons in the first place.
38. I have given due consideration to the affidavit evidence in support of the Republic’s application for the 1st and 2nd Respondents / Applicants to be remanded in Police custody. I have been unable to do the same thing in respect of the affidavits in support of the 1st and 2nd Respondents / Applicants joint application for them to be remanded to conditional bail because the affidavits in support of their joint application are a meagre one without any evidence for the court to determine their application to be remanded to conditional bail. In fact, I am disappointed by them not producing any affidavit containing averments making out a case for them to be remanded to conditional bail.
39. Nonetheless, as regards to the evidence laid before this court by way of SI Malvina’s affidavit in support of the Republic’s application to have the 1st and 2nd Respondents / Applicants remanded in Police custody, there are sufficient materials produced by which I have been persuaded, that the prosecution has proved a prima facie case against the 1st and 2nd Respondents.
40. Clearly, the averments in SI Malvina’s affidavit gives a clear picture of what happened at the cargo terminal of the Seychelles International Airport on the 31st January 2023, the moment the parcel in question was intercepted by Police officers and the control delivery operation that followed that led to the apprehension of the 1st and 2nd Respondents after they were both found to be linked with the imported controlled drug in the parcel. Based on the affidavit evidence in support of the application, the Republic has tendered Prima facie evidence of the involvement of both, the 1st and 2nd Respondents in the commission of the alleged offence. Thus, the suggestion by the 1st and 2nd Respondents / Applicants that the supporting affidavit to the application seeking for their remand is “defective and lacking” because it has no averments against them as regard to their involvement cannot be taken seriously.
41. Having found that a prima facie case against the 1st and 2nd Respondents/ Applicants has been established as a pre requisite, it now remains for this court to establish, whether the grounds which the Republic seeks to rely upon to justify continued detention of the 1st and 2nd Respondents / Applicants in Police custody are made out that would warrant the making of the order being sought for by the Republic, thus denying the 1st and 2nd Respondents / Applicant’s their right to liberty under Article 18 (1) read with 18 (7) (a) – (f) of the constitution. The first and most significant issue to be determined, is whether there are compelling reasons both in law and on the facts, laid before this court to remand the 1st and 2nd Respondents / Applicants in police custody.
42. I take note, that the 1st and 2nd Respondents have been charged with a very serious offence reflected by its penalty as prescribed by law. A conviction would render the 1st and 2nd Respondents / Applicants liable to a term of life imprisonment or a fine of up to one million rupees. That, in itself, is good reason for the belief that the 1st and 2nd Respondents / Applicants may abscond although that alone cannot be good ground to deny them of their right to liberty.
43. I am informed, upon reading the averments in the affidavit in support of the Republic’s application, that the offence committed is part and parcel of a wider organised criminal network operating in different countries, including Sierra Leone, which makes the offence of which the 1st and 2nd Respondents/ Applicants have been charged aggravated in nature.
44. I also take note, that the investigation by the Police is continuing, and that amid the complexities of investigating offences of this nature, primarily, because of the offender’s modus operandi, there are often other persons involved in the commission of the offence that makes the possibility of interference with witnesses or potential witnesses real if the 1st and 2nd Respondents / Applicants are remanded to bail.
45. I am also informed, that drugs related offences continue to rise and that as a small island state, we continue to feel the negative impact of drugs, particularly, on our youth. For this reason, there is a genuine public interest in seeing, that those involved in the illegal drugs trade are brought to justice, and that as such, there is a genuine public interest in seeing that alleged cases are properly investigated without any impediment.
46. In the final analysis, therefore, for the reasons discussed in the proceeding paragraphs, I hereby remand the 1st and 2nd Respondents / Applicants in Police custody for 14 days as of today, to be caused to reappear before this court on the 6th April 2023 at 9 AM.

Signed, dated and delivered at Ile du Port on 23rd March 2023.

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Adeline J