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IN THE COURT OF APPEAL OF SEYCHELLES

 

Steve Hoareau …..................................................................Appellant

VS

The Republic …................................................................Respondent

 

 

CR SCANo: 27/2010 CR SCANo: 28/2010

 

 

 

 

BEFORE: Domah, Fernando, Twomey, JJA

 

Counsel: Mrs. A. Amesbury for the Appellant

Mr. V.M.Benjamin, for the Respondent

 

Date of Hearing: 24th August 2011 Date of Judgment: 2nd September

 

 

JUDGMENT

 

A. F. T. FERNANDO JA

1) This is a case involving 2 appeals, namely SCA 27/10 and 28/10, in connection with two separate orders for remand one dated the 19^th of November 2010 and the other dated the 6^th of December 2010 against the Appellant who stands charged for trafficking in 76 grams cannabis (herbal material). Both appeals have been consolidated into one appeal since the accused and the case is the same.

2) In the case of SCA 28/10 which is against the order of remand by the Supreme Court dated 19^th of November 2010 the Appellant has raised the following grounds of appeal:

(i) The Learned Judge failed to consider the principles of law
applicable to bail applications but addressed his mind to facts that were clearly in issue and should have been addressed at the trial.

 

(ii)The learned Judge erred in law when he stated that "trafficking in controlled drugs is a special case". No where in our laws are drug cases treated any differently. (See Article 27 of the Constitution, where all persons are afforded equal protection before the law).

(iii) The Learned Judge erred when he stated in his judgment
that "there is a possibility of the accused absconding". This finding was grounded on a fact in issue which was based upon an averment contained in the Prosecutions affidavit.

(iv) The Learned Judge erred in law in holding that "The accused is remanded till the conclusion of the case, however the said order will be reviewed every 14 days to monitor any change in circumstances"

3) On examining ground (1) of appeal we find that there is nothing in the order which states that the Learned Judge had addressed his mind to facts that were clearly in issue. All that he had said and quite contrary to what the appellant is saying is: "In considering an application for bail court must exercise caution in not prejudging the issues pertinent to the case but quite obviously, court cannot at the same time completely dissociate itself from the facts of the case before it". The Learned Judge is perfectly right to say what he had stated, for an order for remand cannot be made unless there is before the court some material by way of affidavit to implicate the accused in the crime alleged to have been committed. A cursory glance of those facts in order to make a decision as to bail cannot be said to amount to a determination made upon those facts.

4) It is totally inappropriate for the Appellant's Counsel to challenge the Order on this ground when it is the appellant's Counsel who had ushered in facts at great length before the Bail Court as evinced by pages 11 and 12 of the Appeal Brief. In the Skeletal Arguments for the Appellant it is said that the Learned Judge erred when he stated that "the controlled drug concerned is 76 grams of Cannabis (herbal material)". The Learned Judge had made this statement relying upon the affidavit of the NDEA Officer who had stated that "The contents ....were analysed and the analyst report confirmed the herbal material to be cannabis with a weight of 76 grams." For the purposes of considering a bail application in respect of a drug case, the Judge considering the application has necessarily to look into this matter and there is nothing wrong in relying on an affidavit for that purpose. This amounts only to an examination in brief of the nature of the evidence against the accused and not at the precise evidence available to draw a conclusion as to the guilt of the accused, as stated by the Appellant in his skeletal arguments. We therefore dismiss this ground of appeal.

 

5) As regards ground 2 it must be said that 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 has been committed, the impact the commission of such offences has on society and the economy, the age of the offender and whether the offender has a propensity for commission of offences similar to the one before the court. It is a consideration of all these factors that makes an offence serious or not serious. The seriousness of the offence constitutes one factor but need not necessarily be the sole factor for determination of bail. In the case Roy Beehary V The Republic SCA 11 of 2009 this Court said: "The overriding rationale in favour of such an interpretation may be found in the fact that were that not the case, the State by a mere change in the law and by merely creating an offence as a serious offence would end up by precluding the court from adjudicating on the bail application of any person. That would be an evil precedent for a democratic system in that by a simple and innocuous legislative device categorizing a particular charge to be serious and non-bailable offence, the jurisdiction of the court to determine matters of bail in those cases would be ousted. The result would be that the court would become a rubber stamp of the legislator...."

 

6) Not all cases of trafficking in controlled drugs can be classified into one group as most cases that come up before our courts have been based on the presumption of trafficking under section 14 (d) of the Misuse of Drugs Act and not on the basis of a physical act of trafficking. Section 14 (d) deals with cannabis or cannabis resin which is a Class B drug. If a person accused of trafficking on the basis of the presumptions in section 14(d), as in this case, were to succeed in rebutting the presumption he may even escape the minimum mandatory sentence of 5 years if he is a first offender and especially in a case involving Class B drugs and depending on the quantity he was in possession with. However where the case involves trafficking in controlled drugs referred to in section 14 (a), (b), and (c) which are all Class A drugs a court cannot ignore the deleterious effect that drugs like opium, morphine and diamorphine have on society. The Misuse of Drugs Act has drawn a distinction in the imposition of punishment for class A and class B drugs by prescribing a higher minimum mandatory jail term for trafficking in class A drugs. Therefore the judgment of this Court in Beehary has to be read subject to this qualification.

7) The Learned Judge had mechanically followed the decision in Beehary without giving consideration to what was said in Beehary, namely "A court may well take the view that all the circumstances taken into account especially the seriousness of the offence, release of the defendant is not the option." It does not appear to us that the Learned Judge had taken into account all the circumstances, for he does not appear to have brought his mind to consider the fact that this was a case involving class B drugs and that the charge of trafficking was based on the section 14 (d) presumption, which is a rebuttable presumption. We therefore hold with the Appellant on ground 2.

 

8) We are however of the view that drug cases, like sexual
abuse of young children, are certainly different to the normal
rung of criminal cases that come up before our courts because of its impact on society and the manner the Legislature had decided to deal with such cases by the imposition of mandatory jail terms. Article 27 of the Constitution dealing with Right to Equal Protection of the law is of no relevance as offences have varying degrees of severity and their impact on society as a whole, certainly differs. Therefore there is no merit in the comment of the Appellant that "Nowhere in our laws are drug cases treated any differently", for they certainly are. This does not however mean that a judge hearing a bail application should constantly refuse bail in cases involving trafficking in drugs, without consideration of all the relevant circumstances.

 

 

9) As regards ground 3 a determination by court not to release
an accused on the basis that the accused will fail to appear
for the trial is made in accordance with article 18 (7) (c), when there are substantial grounds for believing so. This belief has to be formed by a court on the basis of evidence placed before it indicative of a likelihood that the accused may abscond, for a court cannot wait until a person has absconded to make this order. But the Learned Judge has based his reasoning on the possibility of the Appellant absconding due to the seriousness of the charge he was facing when he stated "It cannot be ignored that when facing such a serious charge which attracts a mandatory term of 8 years imprisonment there is a possibility of an accused absconding." Therefore the appellant was not correct when he states in his grounds of appeal that "this finding was grounded on a fact in issue which was based upon an averment contained in the prosecutions affidavit".

 

10) It appears that the Learned Judge had been guided by
the decision of the Privy Council in Hurnam V The State
53 of 2004, referred to by this Court in Roy Beehary where
the PC said: "It is obvious 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 drug 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." There are also a number of
decisions to the effect that the seriousness of the crime and
the severity of the sentence are not factors to be taken into
account for an inference that the defendant will abscond: Neumeister V Austria (No. 1) (1968) 1 EHRR 91; Yagci and Sargin V Turkey Series A No 319 (1995) 20 EHRR 505; Muller V France (Reports Judgments and decisions 1998 -VII, 2951).

 

ll)This Court stated in the case of Beehary: "As regards the interpretation whether the seriousness of the offence may be a ground for the denial of bail, the answer is that it should not of itself be a reason. Other facts and circumstances than the mere gravity of the offence and the severity of the penalty should be taken into account." It went on to state: "Even on the issue of the seriousness of the charge, to the extent that the Constitution provides for the Courts determination of the matter, the court should not remain content with just a cursory look at the offence on the charge sheet and the penalty prescribed by the legislature for the purpose of denying bail. It should still examine the particulars of the offence to ascertain whether the offence is serious despite the charge. The statutory charge may be high sounding but the particulars thereof may be just ordinary. The seriousness of the offence should be under careful judicial scrutiny with all the circumstances of the case taken in its proper context. Factors germane to the seriousness of the offence should not be overlooked or minimized. That is independent of other

considerations ". It is clear that the offence of murder can be committed with one stab wound inflicted with a small knife or a several incised injuries inflicted with a machete. But both offences attract a mandatory sentence of imprisonment for life. The offence of manslaughter may be committed by a fist blow (involuntary manslaughter) or a stab wound under provocation (voluntary manslaughter), but both offences attract a discretionary life sentence. The same can be said of robbery with violence, which can have varying degrees of gravity so far as violence is concerned, ranging from a mere push to a severe beating of the victim and both offences attract a discretionary sentence of imprisonment for life. The same can be said of the offence of arson set out in section 318 and a host of other offences.

 

12) In considering the seriousness of cases involving trafficking in controlled drugs a distinction ought to be drawn between those charged on the basis of the presumption under section 14 and those charged on the basis of having been detected in the act of trafficking, especially when it involves Class B drugs. A court should also bear in mind that in respect of those charged on the basis of the presumption, that it is a rebuttable one, and that the accused has not had an opportunity at the pre-trial stage of rebutting the said presumption. In this case if the accused successfully rebuts the presumption applicable to him under section 14 and provided he is a first offender there is a possibility for the court to not impose the minimum sentence of 5 years if it considers there are exceptional reasons for doing so. Had the Learned Judge considered this matter the views that he had expressed as to the likelihood of the accused absconding may have been otherwise. We are therefore of the view that the Appellant should succeed on this ground of appeal.

13. In connection with ground (iv) the Appellant has made the following submissions in his Skeletal Arguments, namely the order of the Learned Judge remanding the Appellant until the final determination of the case is a clear contravention of section 179 of the CPC, which provides that "no such adjournment shall be for more than fifteen clear days"; that the said order has the effect of fettering the discretion of the next presiding judge before whom the bail application is brought; that the practice of judges stating that the order will only be reviewed if there is a "change in circumstances" is a bad practice which has no constitutional or legal basis; and that section 179 of the Criminal Procedure Code is inconsistent with article 18 (7) of the Constitution and therefore void. An examination of the 4th ground makes it necessary to have a close scrutiny of article 18 (7) of the Constitution and section 179 of the Criminal Procedure Code.

14) Article 18 (7) of the Constitution states:

 

"A person who is produced before a court shall be released, either unconditionally or 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 circumstances, determines otherwise -

(a) where the court is a magistrates' court, the offence is one 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 on release;

(d) there is a necessity to keep the suspect in custody for the suspect's protection or where the suspect is a minor, for the minor's own welfare;

(e) the suspect is serving a custodial sentence;

(f) the suspect has been arrested pursuant to a previous breach of conditions of release for the same offence.

 

15. A person is produced before a court, in view of the provisions in article 18 (5) of the Constitution; which makes it obligatory to produce a person before a court within 24 hours or where the circumstances set out in article 18 (5) applies as soon as is reasonably practicable; of the arrest or detention of a person; so arrested or detained, if the person is not released.

16. It is of interest to note that both these sub-articles have been placed under article 18 which deals with the "Right to liberty" and not under article 19 which deals with the "Right to a Fair Hearing". The Right to a Fair Hearing commences when a person is charged with an offence for there cannot be a hearing without a charge. In placing articles 18 (5) and (7) under the "Right to liberty" the Constitution has drawn a distinction between pre-trial detention and detention under sections 179 and 195 of the Criminal Procedure Code, i.e. after a person has been charged by court. This is made further clear by the use in article 18 (7) of the words "for appearance at a later date for trial or for proceedings preliminary to a trial". Two essential principles arise out of article 18 (5), namely no person can be detained without the order of a court and that a person cannot be detained for a long period without a charge.

 

17) Article 18 (6) states: "A person charged with an offence has a
right to be tried within a reasonable time." Once charged the
release or detention of a person is at the discretion of the
court, on which the obligation is placed to ensure that the
accused is tried within a reasonable time. Thus the "Right to be Released" postulated in article 18 (5) is essentially for the pre-trial period although it is a factor that necessarily would be considered whenever a court makes an order for detention under sections 179 and 195, since it has a bearing on the right to liberty of a person and his dignity. Section 179 postulates a period after a person has been charged.

 

18) Section 179 of the Criminal Procedure Code reads thus:

 

"Before or during the hearing of any case, it shall be lawful for the court in its discretion to adjourn the hearing to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties or their respective advocates then present, and in the meantime the court may suffer the accused person to go at large or may commit him to prison, or may release him upon his entering into a recognizance with or without sureties, at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned:

 

Provided that, if the accused person has been committed to prison, no such adjournment shall be for more than fifteen clear days, the day following that on which the adjournment is made being counted as the first day."

 

19) It is to be appreciated that the Constitution has vested the
judicial power of Seychelles in the courts and therefore
entrusted to the courts to ensure the protection of the fundamental rights of the people in administering justice. It
is the duty of the courts to ensure that every person charged
with an offence has the right unless the charge is withdrawn,

to a fair hearing within a reasonable time "[vide article 19 (l)j. To ensure that a hearing takes place within a reasonable time, the presence of the accused at the hearing is a must bearing in mind the exceptions set out in articles 19 (2) (i) and 19 (12). Therefore there is no conflict between section 179 of the Criminal Procedure Code and article 18 (7) of the Constitution. It is to be emphasized that the right to be released at the pre-trial stage under article 18 (7) of the Constitution and once a person has been charged under section 179 of the Criminal Procedure Code are qualified rights to be determined judiciously by the courts on whom the drafters of the Constitution have vested the judicial power of Seychelles. The only difference being that once a charge has been laid it becomes the duty of the court to ensure that the accused is afforded a fair hearing within a reasonable time.

 

20)It will be misconceived to argue that once a person has been charged before a court, he can be committed to custody only for a period of 15 days before or during the hearing and he should as of right be released thereafter.

21. The Learned Judge did not err when he said that "The accused is remanded till the conclusion of the case, however the said order will be reviewed every 14 days to monitor any changes"; especially when taken in conjunction with his earlier statement, namely: "Further nothing prevents court as the case proceeds from releasing the suspect on bail, if court feels that the evidence is weak though the charge may be of a serious nature." By making this statement he has clearly left open the issue of the release of the accused on bail and certainly not fettered the discretion of the next presiding judge before whom the bail application is brought. The 'change in circumstances' the Learned Judge had meant is in respect of the prosecution case, which certainly is for the advantage of the accused and not putting upon the accused any burden of adducing new material to substantiate his claim for release on bail, although this too would be a matter that will necessarily have the consideration of the court. We therefore dismiss this ground of appeal.

22) Since grounds (ii) and (iii) were the factors that have motivated the Learned Judge to decline the application for bail we grant partly the relief sought for in the Notice of Appeal, namely the Order of the Learned Judge dated 19^th November 2010 is hereby set aside. We leave it to the Supreme Court to determine the status of the Appellant, depending on the stage this case has reached before it and if and when an application is made by the Prosecution for his remand, bearing in mind what we have said in this appeal. The reasons to let the Supreme Court decide this matter was aptly described in paragraph 43 of the judgment in Beehary.

 

23) In the case of SCA 27/10 which is against the order of
remand by the Supreme Court dated 6^th December 2010 the
Appellant has put forward one ground of appeal, namely "The
Learned Judge failed to hear the bail application of the
Appellant in total disregard of the Constitution and in
contravention of the Appellant's constitutional right to have
his application heard before an independent and impartial
court (Article 19(1)."

24) The Appellant's case came up before the Supreme Court on the 6^th of December under section 179 of the Criminal Procedure Code on the lapsing of the earlier order for remand made on the 19^th of November, which stated: "The accused is remanded till the conclusion of the case, however the said order will be reviewed every 14 days to monitor any change in circumstances".

25) When Counsel for the Appellant moved for bail on the 6^th of December the Learned Judge had refused to entertain the application "because an order was made on the 19^th November 2010 regarding an application for bail" and that his "instructions are to hold the file until the Judge comes back." The Judge, according to the Learned Judge before whom this application came up on the 6^th of December, was not in the jurisdiction. Thereafter at the request of the prosecution remand of the Appellant had been extended until the 20* December 2010.

26) It is clear that that the order for remand made on the 19^th of November had lapsed by the 3^rd of December 2010 and no reliance could have been placed on it to continue with the remand of the Appellant on the 6^th of December. No Judge can hold on to a file and refuse to entertain an application for release of a suspect or accused on bail until a particular Judge returns to the jurisdiction whether on instructions or not.

27) We therefore have no hesitation in setting aside the order made on the 6^th of December. We leave it to the Supreme Court to determine the status of the Appellant as set out in paragraph 22 above.

 

 

 

 

 

A.F. T. Fernando Justice of Appeal

 

 

I agree

 

 

S. Domah

Justice of Appeal

 

I agree

 

 

M. Twomey

Justice of Appeal

 

 

Dated this 2^nd day of September 2011, Victoria, Seychelles