Republic v Murali (30 of 2007) [2007] SCSC 115 (18 November 2007);







Criminal Side No. 30 of 2007

The Attorney General Mr.
Fernando assisted by Mr. Camille for the Republic

Mr. Hoareau and Mrs. Antao for
the Accused



This is an application to vary
the bail terms set by the court on the 22
October, 2007. It is submitted by the defence counsel that the said
terms or conditions are not reasonable or legal as required
Article 18 (7) of the Constitution. In particular, the order to
deposit a sum of USD 260,000.00 before the accused’s

enlargement on bail was considered unreasonable because the said
amount, if converted into rupees, would be almost equivalent to
alternative sentence of the fine of SR. 3 million prescribed in
Section 57(1)(a) of the Anti-Money Laundering Act, 2006 under
the charges are brought. Further, that according to Section 17 of
the Central Bank Act, Cap26 the unit of currency of Seychelles
be the Seychelles Rupee and as such there was no justification for
the accused to deposit cash bail in a different currency
United States Dollars.

Article 18 (7) reads –

A person who is
produced before a Court shall be released, either unconditionally
upon reasonable conditions
for appearance at a later date for trial or for proceedings
preliminary to a trial except where the court, having regard to the

following circumstance, determines otherwise...........”

Reasonable conditions”
here would require a court to summon its judicial mind and carry out
a proper consideration and evaluation
of all the surrounding factors
of the case together with the nature of offences at hand as well as
the situation and circumstances
of the applicant, as far as they are
known, and where possible the Court could inquire into the
applicant’s means and antecedents.

The accused is a foreigner and
was the managing director of Hospitality Supplies Ltd the company
cited in the charge sheet. He stands
charged with three counts of (1)
Fraudulent appropriation of company property by an officer contrary
to and punishable under Section
314(a) of the Penal Code, Cap 158,
(2) Money laundering contrary to Section 3(1)(a) and punishable under
Section 57(1)(a) of the
Anti-Money Laundering Act of 2006 and (3)
Corrupt practices contrary to and punishable under Section 373(a) of
the Penal Code,
Cap 158. It is worthy noting that there are two
other files (Criminal Side No. 36 of 2007 and Criminal Side No. 37 of
2007) also
related in one way or another to this one that are before
the same court.

The substance of the charge or
subject matter in all the three counts of the current charge sheet
refers to transactions involving
a sizeable amount of money and
wholly executed in United States Dollars. As rightly submitted by the
learned Attorney General,
the record reveals that the defence counsel
proposed the figure of United States Dollars 260.000.00 as a cash
bail deposit to secure
the accused’s release. This sum has to
date not been paid.

In these circumstances, in my
view, it would not be unreasonable or strange at all for cash bail
terms to be set out in US Dollars
and at that tune. Moreover, there
exists no law prohibiting the imposition of such terms in a bail
application moreso, in such
perfect conditions. The Central Bank Act
merely mentions the unit of currency of Seychelles but it is
irrelevant to these proceedings.
It does not impose any restrictions
nor define which transactions should be conducted in what currency.
The prescribed sentence
(both fine and custodial) is just, but one of
the factors to put into account when not only granting but also
laying the conditions
for bail. For instance, a cash bail deposit
could be well over and above the fine involved if in the mind of the
court the offences
are regarded to be of a grave nature or where it
is highly probable, for one reason or another that the applicant may
not return
for his trial. There is no formula to be followed as the
entire exercise is left to the good sense of judgment of the court to
weigh the prevailing circumstances. Though not binding, proposals on
conditions of bail could be made by any or all of the counsel
to the
court. However, an applicant who finds the conditions to be
unaffordable, unreasonable or excessive is free to apply for
variation thereof.

The grounds advanced herein for
the variation are not that convincing as already discussed but like I
stated in the case of
vs. Randy Bradburn Criminal Side No. 54 of 2006

“where a court
of law is minded to enlarge an accused on bail should do so either
unconditionally or on terms or conditions
that are reasonable and can
be afforded and satisfied by the applicant. See Article 18 (7) of
the constitution. An attempt should
be made to look into the
circumstances of the applicant as far as possible otherwise high
unaffordable bail terms would defeat
the very purpose of enjoyment of
the right to bail intended by the constitution.”

It therefore remains incumbent upon the Court, in its wisdom, to
carefully re-evaluate and see to it that reasonable conditions

affordable by the applicant are imposed but without suppressing or
compromising the other factors considered above and the pertinent

rules laid down in the statute books and jurisprudence for guidance.

Although the applicant has not
demonstrated nor expressly stated that he has tried to fulfil and or
failed to satisfy the above
conditions, it can be gathered from the
submissions and the time spent on remand since his admission to bail
that he is facing
some impediments to regain his liberty. It is only
just and fair that the said conditions be revised to his advantage.

In light of the foregoing and
the value of the subject matter as reflected in the charge sheet, it
is hereby ordered that a sum
of 160, 000/- USD be deposited instead
of the USD 260, 000.00 earlier imposed. The other conditions still



Dated this 19th
day of November, 2007.