R v Moses and Ano. ( SC CR NO. 14/2015) [2015] SCSC 62 (05 March 2015);

 

 

 

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side:  14/2015     

       [2015] SCSC      62

 

 

THE REPUBLIC

 

 

Versus

 

 

GERALD MOSES

 

MARIO NIBOURETTE

 

 

 

Heard:                         19th February 2015

Counsel:                      Mr. Anath,  for the Republic

 

                                    Mrs. Amesbury for the first accused

 

                                    Mr. Gabriel for the second accused

 

Delivered:                   5th March 2015

 

RULING

 

 

Akiiki-kiiza J

 

[1]               Both accused persons are charged on three counts of official corruption, Contra Section 91 of the Penal Code and on count 4. Count they charged with conspiracy to obstruct the course of justice Contra Section 110 (b) of the Penal Code Act. They are both punishable under the same sections.

 

[2]               All these offences are alleged to have been committed on the 20th January 2015 at Victoria, Mahe. It appears both accused person are public servants who are employed by NDEA which is a government body charged with matters related to prohibited drug matters in Seychelles.

[3]               When they appeared before me for the first time, the learned counsel for the Republic moved the court to remand them. The prosecution had filed a Notice of motion supported by an affidavit deponed by one Johnny Malvina, who is attached to NDEA.  In his said affidavit, he gives a brief history of the case. And in paragraph 7 of the said affidavit, he stated as follows:-

“7. Hence it is humbly prayed in view of the above facts and circumstances that the respondents herein, namely Gerald Moses, and Mario Nibourette are to be remanded in custody on the following grounds:-

                                                                                                        i.            The offence charged against the respondents herein are of serious in nature, the act to offer to give any kind to the person being employed in the Public Service and also agrees to receive financial gain being in Public Service are felony in nature and to which carries a sentence of up to 7 years imprisonment.

                                                                                                      ii.            That the nature of the offence that allegedly committed by the respondents herein by its nature is serious offence that is trying to pervert the course of justice by assisting drug traffickers for monetary gain in a same offence.

                                                                                                    iii.            That there are reasonable grounds to believe that if the respondents who were released on bail they might abscond or by any means obstruct the course of justice since they tried to  pervert the evidence in an on going trial.

                                                                                                     iv.            That the offence of receiving bribery while discharging their official duties while working as NDEA agents, breached the trust and also attempting to tamper with other witnesses involved in other drug cases who amplified the serious nature of the offence .

                                                                                                       v.            That there are substantial grounds to believe that if the respondents are released on bail and not remanded, will set a precedent in the minds of the other agents and employees of other public service departments leading to laxity instead of deterrence and further disruption in the working mechanism of law enforcing authorities.

                                                                                                     vi.            And further, this kind of serious offence also have serious impact on society at large endangering the peace public order and morality especially of the growing generations.

At the hearing the learned counsel for the Applicant/ Republic relied on the above to pray for remanding both accused persons.

 

[4]        On the other hand Mr. Nicole Gabriel who represented both respondents prayed for released of both of them on bail on the terms the courts deems fit and proper. He told court that count 4 of the charge sheet is a mere misdemeanour. That there was no allegation of the accused persons having received any financial gain but only discussion about a proposed payment of the figures mentioned in the affidavit. Secondly that there was no corrupt practice alleged in the charge. As to the alleged breach of trust he submitted that this was for fetched and misconceived. That there are no compelling reasons before the court to warrant the remanding of the two accused persons. He also stated that bail applications are different from the main case and should be treated differently. Mr. Gabriel cited the case of KENETH ESPARON VS REPUBLIC SCA 1/14 in support.

 

[5]        I have carefully reviewed the submission of both learned counsel and perused both statutory and case law on this matter.

 

[6]        In Seychelles a person charged with an offence is entitled to be enlarged on bail unless certain circumstances enumerated in Article 18 (7) of the Constitution exist. Section 18 (7) of the Constitution provides as under:-

18 (7) 

a)      Where the court is a Magistrates court, the offence is of treason or murder

b)      The seriousness of the offence

c)      There are substantial grounds for believing that the suspect will fail to appear for the trial or will interfere with the witnesses, or will  otherwise obstruct the course of justice or will commit an offence while release.

d)      There is necessity to keep the suspect in custody for the suspect’s protection or where the suspect is a minor, for minor’s welfare.

e)      The suspect is serving a custodial offence.

f)        The suspect has been arrested pursuant to a previous breach of the condition of release of the same defence.

[7]        In the instant case, the prosecutors relying on 18 (7) (b) and (c) of the Constitution. This can be discerned from a careful perusal of paragraph 7 of Johnny Malvina’s affidavit deponed on the 19th of February 2015 and which was deponed in support of Notice of motion seeking to remand the accused person. I have set them herein above.

[8]        In the case of FRANCIS BARREAU SCA CRIMINAL APPEAL NO 7/11, the Seychelles Court of Appeal had the following to say:-

“……….as we have already stated in the case of STEVE HOAREAU VS REPUBLIC SCA  28/10 the seriousness of the offence is a determination the court would have to make taking into consideration the maximum penalty the Legislature has decided to impose for its commission, the likelihood of the maximum sentence being imposed, whether the sentence is mandatory or not, the manner the offence was committed, the impact the commission of such offences has on society and the economy, the age of the offender and whether the offender has propensity for commission of similar offence before the court. It is a consideration of all these factors that makes an offence serious or not……”

[9]        Among the other reasons a judge has to consider is whether the case is taking long to be heard.

 

[10]      This is the first time the matter has come to court. I also note that the substantive case against the accused person is to be treated different from the bail application. This is in accordance with what the Court Of Appeal stated in paragraph 47 in KENETH ESPARON VS REPUBLIC SCA NO 1/14.

 

[11]      It is my considered view however, that although I totally agree with their Lordships interpretation of the law on bail as pronounced by them in the KENETH ESPARON case, it would be difficult for a court to totally ignore the substantive charge with which an accused applying for bail is charged with, as the Notice of Motion and supporting affidavits must of necessarily refer to it and the judge has therefore to inevitably know the nature of the charge and the surrounding circumstances as mandated by section 18 (7) of the Constitution. In other jurisdiction, and as suggested by the Court of Appeal, bail applications are not heard by the same judge who is seized with the main case with which the accused is charged with.

 

[12]      In the instant case the affidavit sworn in support of the application to remand the accused person, the Republic shows why the accused should not be released on bail. As we all know, an affidavit is legally recognised as a form of evidence. Normally it can be countered or challenged by filing an affidavit in reply. This is not the case here. In paragraph 7 of the affidavit supporting the prosecution Notice of motion seeking to remand the accused, it is revealed that, the maximum sentence for 2 counts and the alternate is 7 years imprisonment which according to Section 5 of the Penal Code is a felony. It has also to be noted from the same paragraph that the offences under Section 91 of the Penal Code involve perversion of course of justice and in this particular case by Law enforcement officers, who are alleged to have attempted to interfere with an on going case against the accused persons involving prohibited drugs.

 

[13]      From the above affidavit there is an attempt to interfere with the proper prosecution of the said drug case by the accused persons by trying to interfere with the proper investigation and prosecution witnesses

 

[14]      It is my considered view that this is one of the compelling reason to warrant refusal of bail. I accordingly allow the application to remand both accused person for 2 weeks until further orders of this court. Of course they can renew their application if and when the circumstance now prevailing change. They can also appeal to the Court of Appeal for redress.

            Order accordingly

                                   

 

Signed, dated and delivered at Ile du Port on 5 March 2015     

 

 

 

 

Akiiki-kiiza J

Judge of the Supreme Court