JA v R (CR39/2019) [2020] SCSC 425 (20 January 2020)

IN THE SUPREME COURT OF SEYCHELLES , Reportable [2019] sese .,11 CR39/2019 Applicant Respondent (rep By Nichol Gabriel) and REPUBLIC (rep. by Gulmette Leste) Neutral Citation: v Republic CR39 of 20 19 [2020] sese del ivered on 21 Before: Summary: Heard: Delivered: VidotJ Bail; Articles 18(1) and 19(2)(a) of Constitution, Section 179 ofthe CPC 07 January 2020 21 January ~020 ORDER VIDOTJ [1] The Applicant has filed a Notice ofMotion supported with affidavit seeking his release 011 bail. The Applicant stands charged of 2 counts of sexual assault on a minor. [2] The Applicant seeks remand on the ground that there has been -achange in circumstances in that the Applicant will not interfere with key witnesses in that the virtual complainant has already testified. In fact the case is fixed for July 2020 but the virtual complainant gave de bene ese evidence in November 2019. They also argue that a second case of similar nature that was before another court has been with withdrawn. [3] The Republic objected the application. Counsel for the Respondent argued that the virtual complainant is a vulnerable witness who needs to be protected. There are other witnesses that is known to the Accused and if released on bail there is a possibility that the Accused will interfere with those witnesses. [4] In fact after I had perused the file, I discovered that the Applicant was never remanded in this present case. When the Applicant first appeared before Court he WFlS already being remanded before another court and despite having filed an application for remanding the Applicant, the Respondent decided not to proceed with the application because the Applicant was already on remand. [5] The grounds on which the Respondent based the application for remand as per the affidavit attached to that application are as follows; i. The offence of sexual assault is a serious and heinous crime against human dignity and morality; ii. The offence of sexual assault is serious as it carries a minimum sentence of 14 years of imprisonment .and in the instant case aggravated considering the multiple counts of offence charged and the age ofthe victim; iii. tv. v. The victim is avulnerable witness being a very young child; That the Applicant did various acts on different occasions; and That the victims and witnesses are civilian witnesses known to the Applicant, therefore if the Applicant is released on bail, there is reasonable grounds to believe that he will interfere with the witnesses. [6] As stated above, the Respondent never argued the original application for remand. Therefore, since there was no remand order, the Respondent could not be asked to present any change in circumstances of a non-existent remand order. More importantly the Applicant was never on remand in this case. Technically speaking he should be released. However, since the application was made and responded to I shall consider whether the Applicant should be remanded, granted bailor released altogether. [7] Bail is a constitutional right provided for under Article 18( I) of the Constitution. Bail remains the rule and not the exception. As provided for in Esparon v the Republic SeA 1 of 2014 such right can only be curtailed in exceptional cases where the prosecution has satisfied court that there are compelling reasons in law and on facts for remanding the accused. Article 18(7) provides for derogations whereby such right to Iiberty can be curtailed. The list of derogations seems to be an exhaustive one, but this court does not believe this to be so. The court should be able to evaluate the particular circumstance of the case and exercise its discretion to decide that there are exceptional reasons for remanding the accused. I find support for that position in the case of Beeharry v Republic [2009] SLR 11 whereby it was held that the right to liberty is subject to the rights of others and to. the public interest. Another consideration would be if the release of the accused to bail could place his safety and security at risk. Nonetheless, Article 18(7) advocates for release; either unconditionally or upon reasonable condition. That reinforces that remand should be adopted asa last resort. As Was pronouncedin Esparon v The Republic (supra), in dealing with bail application, the court needs to ensure that "theprinciple is not reversed in the sense that bail instead ofjail becomesjail instead 0/ bail ,j [8] At the end of the day, the court should be concerned with ensuring that the Applicant does not abscond and present himself before court each time that the case is called. The main ground when considering an application for remand is the threat that an accused may default appearance When he is required to attend Court. At the end of the day it has to satisfy itself that either it should remand the accused or release conditionally or unconditionally. That should be the first consideration. [9] In assessing the merit of the Application, lremind myself that the Respondents is innocent until be is proven or has pleaded guilty as provided for under Article 19 (2) (a) of the Constitution. [10] Having heard Counsels circumstances for both the Applicant and the Respondent, I in do not in the r based my decision on the fact find any reason to remand the Applicant. that the virtual complainant. has already testified and the fact that one of the key witnesses is deceased. I however I will impose conditions for his release to ensure that he does not interfere with witnesses and I also take into consideration the gravity of the offence with to the I release the Applicant on bail subject is charged. Therefore, which the Appellant following conditions; I. The Applicant shall provide a cash bail. in the slim of SR50,OOQ. OOwith 2 sureties who shall each sign a bail bond in the sum of SR50,OOO. OO. This is to ensure that the Applicant appears before Court each time that the case is called; 11. The Applicant shall surrender his passport or any travel documents that he may have to the Registrar of the Supreme Court by 12 noon today and the Immigration Authorities are advised not to issue any passport or travelling documents to the Applicant and shall prevent him from leaving the jurisdiction; 111.. The Applicant shall not go inside the Roche Caiman Village at all times until the final determination of this case or further order from the court; IV. The Applicant shall not approach or interfere with any of the witnesses in this .case and shall not in anyway obstruct the course of justice in this case; V" vi. The Applicant shall not while on bail commit any other Offences; The Applicant shall report to the Mont. Fleuri Police Station once a week Sighed, dated and delivered at lie du Port 2J January 2020 4