Leon & Anor v R (CM 132 of 2024) [2024] SCSC 208 (24 December 2024)

Adeline J

1. The 1^st Applicant is the 2^nd Accused and the 2^nd Applicant is the 1^st Accused in CR 27 of 2024. Both of the Applicants have made separate bail application and this ruling is in respect of both. In the main case proper (CR 27 of 2024) there is a 3^rd Accused, one Shamira Chang-Waye who has been remanded to bail on strict bail conditions. All of the Accused persons in CR 27 of 2024 have been charged with drugs related offences and are awaiting trial.

2. As per the amended charge sheet dated 15^th July 2024, the 1^st Applicant/2^nd Accused is charged with one count of Trafficking in a Controlled Drug (count no1) for allegedly found to be Trafficking in Cannabis (resin) with a total net weight of 490.40 grams. The 1^st Applicant/2^nd Accused is also charged with one count of Trafficking in a Controlled Drug by means of being Found in Unlawful Possession of a Controlled Drug Heroin (Diamorphine) with a total net weight of 20.58 grams, pure heroin content of 9.46 grams (count 4).

3. The 2^nd Applicant/1^st Accused is charged with one count of Trafficking in a Controlled Drug Cannabis ( resin) with a total net weight of 503.30 grams ( count 2). The 2^nd Applicant /1^st Accused, is also charged with Trafficking in a Controlled Drug by means of being Found in Unlawful Possession of a Controlled Drug with Intent to Traffic, Cannabis ( resin) with a total net weight of 1023.50 grams ( count 3). The 2^nd Applicant/1^st Accused is further charged with Possession of Heroin ( Diamorphine) with a net weight of 1.51 grams.

4. By way of a motion supported by an affidavit of facts and evidence, the Respondent, ( the Applicant then) applied to this Court pursuant to Section 179 of the Criminal Procedure Code read alongside Article 18(7) of the Constitution for an order of this Court to have the 1^st Applicant/2^nd Accused, and the 2^nd Applicant/1^st Accused remanded in police custody.

5. On the 3^rd of May 2024, on account of the uncontroverted affidavit evidence laid before this Court in support of the application for remand, this Court found, that there are merits in the application, and accordingly, made an order for the 1^st Applicant/2^nd Accused and the 2^nd Applicant/1^st Accused to be remanded in police custody pending trial.

6. By notice of motion dated 18^th November 2024 supported by an affidavit of facts and evidence, learned counsel for the 1^st Applicant/2^nd Accused applied to this Court for an order for the 1^st Applicant/2^nd Accused to be remanded to bail on strict bail conditions in variation of the order made on the 3^rd May 2024.

7. In its affidavit in support of the motion, interalia, the 1^st Applicant /2^nd Accused avers the following;

3. I am advised by my attorney and verily believe that as per the application and supporting affidavit of the Republic, the Republic has sought for my remand in custody on the ground that the offences are serious and that I will interfere with witnesses thereby obstructing the course of justice. They have also alleged that I will fail to appear to the Court for my trial.

4. I state that none of the above reasons are correct. I state that I have every intention to appear in each and every Court dates that the case shall be set. I further state the Respondent has not support their averments that I will interfere with witnesses, obstruct the course of justice or fail to appear before the Court for the trial. I state that there are no reasonable basis in this averment.

5. I further state that I am advised that the seriousness of the offence cannot be a sole ground to remand me in custody. I state that the drug alleged in the charge is a class B drug, for being Cannabis. I also aver that the amount of the alleged heroin is on the lowside.

6. I further state that I am advised and verily believed, that the Court had previously granted bail in cases involving much more serious cases involving class A drug.

I am particularly advised of the case of Republic vs Jimmy Labrosse and Republic vs Said Mchammed before the very Court I am currently being tried. Both cases involve class A drug and the Court had been minded to grant bail subject to strict bail conditions. I aver, that the drugs involved in the charge against me is a class B drug, Cannabis.

7. I am also advised of the case of Republic v Alexander Geers which involved cultivation and possession of Cannabis with intent to traffic in a much larger amount, namely in excess of 1000 grams, whereby the Court granted the Accused bail subject to conditions.

8. I pray to his Lordship to consider the above averments and particularly the facts deponed in this affidavit for my remand in custody and the rest of the averments outlined above, to consider releasing me on bail with strict conditions of which I am able and willing to abide to.

8. By notice of motion dated 11^th December 2024 supported by an affidavit, learned counsel for the 2^nd Applicant/1^st Accused applied to this Court for an order for the 2^nd Applicant/1^st Accused to be remanded to bail on strict bail conditions in variation of the order made on the 3^rd May 2024. In his affidavit in support of the application, the 2^nd Applicant/1^st Accused, interalia, makes the following averments;

3. That since my arrest, I have been remanded in police custody at Montagne Possee Prison and the hearing date is 7^th March 2025, almost a year from the date of arrest which fact was not known to the court at the time of the remand in police custody.

4. That, I am advised by Counsel and verily believe the same to be true that as per the Application and supporting affidavit of the Applicant, the Applicant has sought for my remand in custody on the grounds that the offence is serious, and that I will interfere with witnesses thereby obstructing the course of justice. They have also alleges that I will fail to appear in court for my trial if I am released on bail.

5. That I am advised by counsel and verily believe the same to be true that in the case of the Republic vs Alexander Geers, the Chief Justice released Akexander Geers on bail despite the fact that he was charged with possession with intent to traffic in 3945 kilograms of Cannabis and he was also charged with cultivation of a controlled drug, namely Cannabis, which I am advised by counsel are charges which are more serious than the ones I have been charged with when considering the quantity of the drugs involved.

6. I aver that, based on the advice of Counsel, the seriousness of an offence is not a standalone ground to remand me to custody, especially bearing in mind, like the Geers case, I too coorperated with the Police by showing them my residence.

7. That I am advised by Counsel and verily believe the same to be true that in the case of Republic vs Jimmy Labrosse and the Republic vs Said Mohammed before the very same Court I am currently being tried, and that both accused’s in the said cases despite the drugs being a class A drug (heroin), the court granted them bail subject to strict conditions. I aver that the charges against me all involve Class B drugs, save for count 5 which I am charged with Shamira Chang-Waye with a class A drug which weights 1.51 grams.

10. That I am advised by Counsel and verily believe the same to be true, that bail may only be denied after the court has properly ascertained that compelling reasons exist in law and on the facts which justify the denial, such as those enumerated in the constitution under Article 18[7].

9. In opposition to the application objecting to the grant of bail, the Respondent/ Prosecution argues;

1. that there are no facts in the affidavit sworn by both Applicants/ Accused which show a change in circumstances.

2. The 2^nd Applicant/ 1^st Accused conduct during the period of detention thus far substantiate the risk raised in the remand application.

10. Making references to the application for remand of the 1^st and 2^nd Applicants/2^nd Accused/1^st Accused in police custody dated 13^th May 2024, and the supporting affidavit, learned counsel submits, that the main grounds of which remand was sought for was because of the fact that 1^st Applicant/2^nd Accused and the 2^nd Applicant/1^st Accused displayed a clear organised criminal behaviour and the propensity to obstruct the course of justice as they tried to dispose of the contraband (ie the evidence). Supporting his arguement by case law, learned counsel cites the case of Samson v R (CR 82/2020 [2021] SCSC 857 and the following extract taken from it;

I indeed remand the Accused because the prosecution had not only satisfied the court as to the seriousness of the offence, but also, that there was real likelihood that the Accused will abscond, and that there is the likelihood of interference with witnesses, or will otherwise obstruct the course of Justice. These are grounds, as provided under Article 18(7) and (c ) on which an Accused maybe remanded. This court believes such possibilities still exist should the Accused be released on bail.’

11. Learned counsel also cites the case of Republic v Moustache SLR 2011, [at page 26] in which case, the Accused was charged with the offence of ‘Possession with Intent to Traffic’, and because the Accused had resisted arrest, the court was of the view, that this is an indication of a high likelihood of the Accused absconding. Learned counsel calls on this court to take similar view and to take into consideration the fact that the 2^nd Applicant/1^st Accused attempted to dispose of the package of controlled drugs, that is an indication of his propensity to obstruct the court of justice.

12. It is also the submission of learned counsel against the grant of bail, that the Applicants have not canvassed any fact that shows a change in circumstances since the court made the order for the 1^st Applicant/2^nd Accused and the 2^nd Applicant/1^st Accused to be remanded in police custody. Learned counsel relies on and cites the case of the Republic vs Marcus Adela (5/2009) in which case the court had this to say;

‘Once the prosecution has satisfied the court under Article 18(7) (b) of the constitution, that due to the circumstances regarding the seriousness of the offence committed, the Accused should be remanded ………, it is not the duty of the prosecution thereafter, every time the Accused is produced in Court to satisfy the court over and over again of the seriousness of the offence. As the Accused has under an Article of the constitution lost his right to be released, it is now for the accused in the instant case to satisfy the court that a change in circumstances with regard to Article 18(7) has occurred to warrant a regaining of right to be released guaranteed under Article 18(7).’

13. Within this background, it is submitted by learned counsel, that once a court remand an Accused person in police custody, the court should not entertain an application for bail unless there is a change in circumstances. Learned counsel also submits, that the court should not hear arguments which it has previously heard. Learned counsel relies on R v Emmanuel [2004] SLR II for that proposition.

14. As regards to the case of Republic v Albert Geers [2022] SCSC 6, learned counsel submits, that this case should be distinguished from the case in hand, in that, because the Accused, Geers, having been released at the further holding stage and conducted himself in a manner which mitigated against the potential risks as averred by the Republic in that case, and ‘very much lesson’ the compellable reason for his remand. Learned counsel submits, that in respect of the 2^nd Applicant/1^st Accused he has not displayed any of the reasons for his remand, to the contrary, has increased the said risks through his conduct.

15. It is the submission of learned counsel for the Respondent, amid the 2^nd Applicant/1^st Accused reoffending whilst on remand in police custody, that the conduct of an Accused person while in police custody is an important factor to consider in deciding whether to continue to remand an Accused in police custody or to remand him on bail with or without conditions. To emphasise the point, learned counsel reminds this court, that in Samson (supra) the court took notice of the Accused conduct during the time he was on remand in police custody and found that his ‘behaviour did not inspire confidence in the court to release him on bail’.

16. At this juncture, I note, that in the affidavit swore by one Cpl Nelson Lusta, which affidavit is dated 4^th November 2024 and is exhibited to the affidavit in reply to the application for bail by learned counsel for the Respondent, Cpl Lusta avers, that the 2^nd Applicant/1^st Accused is charged with wilfully and unlawfully set fire to a building or structure contrary to Section 318(a) and punishable under Section 318 of the Penal Code.

17. I also note, that in his affidavit in support of his application for bail, the 2^nd Applicant/1^st Accused, unsurprisingly fails to make full and frank disclosure by failing to disclose this fact which in my considered opinion is a matter to be taken into account in determining whether or not the 2^nd Applicant/1^st Accused should be granted bail in variation of the order remanding him in police custody. I am however baffled, that a man who is incarcerated for allegedly committed a serious offence and who wish to be liberated, would commit another serious offence whilst on remand in police custody then would claim to have a ‘legitimate expectation’ that he would be remanded to bail as stated in his affidavit in support of his application for bail.

18. The behaviour of the 2^nd Applicant/1^st Accused while on remand in police custody is indicative of the fact that he cannot be trusted and therefore, there is no guarantee that he would not do what learned counsel for the Respondent has said he would do in the likelihood that he is remanded to bail. The argument that a person is innocent until proven or pleads guilty cannot be argued against given that this is trite law. However, such argument cannot be used in this instance to persuade this court to remand the 2^nd Applicant/1^st Accused to bail with or without conditions. This is because the mere fact that the 2^nd Applicant/1^st Accused is charged with a new offence whilst in police custody, suggests, that there is prima facie evidence against him which has led to the charge and that is a matter for the court to take into consideration for the purpose of determining this bail application.

19. In the final analysis, therefore, in variation of the order of this court made on the 3^rd May 2024, this court remands the 1^st Applicant/2^nd Accused to bail on the following bail conditions;

1. The 1^st Applicant/2^nd Accused shall pay a cash bail of SCR 30,000 at his own recognisance to secure his presence in court as and when he is required to do.

2. The 1^st Applicant/2^nd Accused shall provide two sureties who shall enter into a bail bond in the sum of SCR 15,000 each to secure the attendance of the 1^st Applicant/2^nd Accused in court as and when he is required to do so.

3. The 1^st Applicant/2^nd Accused shall not absent himself from the jurisdiction of Seychelles without leave of this court.

4. The 1^st Applicant/2^nd Accused shall surrender his Passport or any travelling documents to the registry of the Supreme Court.

5. The Immigration Authority shall not issue the 1^st Applicant/2^nd Accused with any travelling documents.

6. The 1^st Applicant/2^nd Accused shall not interfere with any witnesses or potential witness likely to testify against him at trial.

7. The 1^st Applicant/2^nd Accused shall not be charged with similar offence whilst on bail.

8. The 1^st Applicant/2^nd Accused shall report to the nearest police station to where he lives every Friday before 6 pm commencing Friday 27^th December 2024.

9. The 1^st Applicant/2^nd Accused shall submit himself to the jurisdiction of this court on the date and time appointed to do so up to the date the case is concluded.

10. Breach either of these bail conditions by the 1^st Applicant/2^nd Accused, ‘without good cause’ shall render revocation of bail and consequently the 1^st Applicant/2^nd Accused, shall be remanded in police custody.

20. The 1^st Applicant/2^nd Accused shall be remanded in police custody up to the 7^th February 2025 when he will be caused to reappear before this court. Should the 1^st Applicant/2^nd Accused comply with the bail conditions so imposed, he would be remanded to bail.

21. As regards to the 2^nd Applicant/1^st Accused, this court declines to vary its order made on the 3^rd May 2024 remanding the 2^nd Applicant/1^st Accused in police custody, and accordingly, dismisses the application to vary the said order to remand the 2^nd Applicant/1^st Accused to conditional bail for the reasons discussed in the preceding paragraphs of this ruling.

22. A copy of this order shall be served on the Immigration Authorities.

23. A copy of this order shall be served on the Commissioner of Police.

Signed, dated and delivered at Ile du Port on 24^th December 2024.

____________

Adeline J