R v Alam & Or (499) [2023] SCSC 499 (28 June 2023)

SUPREME COURT OF SEYCHELLES In the matter between: THE REPUBLIC (Represented by Mrs Gulmette Leste) Vs And Reportable [2023] SCSC 4qq CM 46/2023 (Arising in CR 26/2023) Applicant/Prosecution 1st Respondent/1 st Accused 2nd Respondent/Z'"' Accused Neutral Citation: Rep vs Alam & Or (CM 46/2023) [2023] SCSC 4.'\'\ (28th June 2023) Before: Summary: Adeline J Application by the Republic (Prosecution) to remand the accused persons in police custody/Section 179 of the Criminal Procedure Code/Article 18(7) of the Constitution/Application opposed by the Respondents/Accused/Counter application for Respondents/accused to be remanded to conditional bail. 26 May 2023 and 2 June 2023 28 June 2023 Heard: Delivered: FINAL ORDER Application by way of Notice of Motion supported by affidavit made pursuant to Section 179 of the Criminal Procedure Code - The Applicant/Prosecution has tendered evidence of a prima facie case against the 1st and 2nd Respondents/accused - The grounds relied upon for continued detention of the l" and 2nd Respondents/Accused in police custody are made out - Article 18(1) read with Article 18(7) (b) and (c) of the constitution - There are compelling reasons why the l " and 2nd Respondents/Accused should be remanded in police custody thus denied bail and effectively their right to liberty. The Application to have the 1st and 2nd Respondents/Accused remanded in police custody custody for 14 days as of today. succeeds, and accordingly, this COUlt orders that they be further remanded in police RULING Adeline, J [1J This is a ruling on an application by the Republic, ("the Applicant") made by way ofN otice of Motion supported by an affidavit pursuant to Section 179 of the Criminal Procedure Code read with Article 18(1) of the Constitution, for an order of this COUltto have the l " and 2nd Respondents/Accused remanded in police custody. The application follows the filing of a formal charge pertaining to CB 20113/23 in COUlton the 25th April 2023 against the 1st Respondent/Accused, one MD Nur Alam, a Bangladeshi national and holder of No Mahe, Seychelles and against the 2nd Respondent/Accused, one holder of NIN 9 Mahe both of whom are charged with serious criminal offences against children. [2] The 1st Respondent/Accused and the 2nd Respondent/Accused are charged with two counts of child trafficking contrary to Section 4(1) as read with Section 5 (1) (b) of the Prohibition of Trafficking in Persons Act, 2014 and Section 22 (a) of the Penal Code. The l " Respondent/Accused is also charged with five counts of Sexual Assault contrary to Section 130 (1) as read with Section 130 (2) (b) and Section 130 (3) (b) of the Penal Code and punishable under Section 130 (1) of the Penal Code, as well as two counts of indecent Assault contrary to Section 135 (1) as read with Section 130 (3) (b) of the Penal Code and punishable under Section 135 (1) of the Penal Code. [3J The facts and circumstances that led to the arrest, charge and prosecution of the l " and 2nd Respondents/Accused are as per the averments deponed by one detective Moira, Hoareau in her sworn affidavit in support of the application dated 25th April 2023. On account of detective Hoareau's affidavit evidence, the facts and circumstances that led to the arrest, charge and prosecution of the 1st and 2nd Respondents/accused are summarised as follows; (i) It as on the 22nd March 2023, that the police received a complaint from one of Cascade, Mahe stating, that the mother of their two daughters, the 2nd Respondent/Accused was taking their two daughters, , both of the age of 11 years old to a man at Providence whom they know as the 1st Respondent/Accused. According to the nature of the complaint, the two girls were left unattended by their mother in the presence of who on more than one occasion had asked them to remove their panties and thereafter touched their private part and then asked them to touch his penis in return for money. (ii) On the same day, the complaint was referred to the Child Protection Unit in the Social Services Department for an investigation, and as part of the investigation Mr Joubert was interviewed by the police. In his interview, Mr told the police that his daughters have been indecently assaulted by On the same day, the two girls were interviewed about the alleged incidents. (iii) They stated, that on multiple occasions, their mother, the 2nd Respondent! Accused, took them to Boss where they were kept in an office watching sex videos. There, Boss would ask them to remove their clothes as well as their panties and then touched their breast and Vagina. He would then remove his trousers and asked them to touch his penis. According to the girls, Boss would then give them some money which their mum, the 2nd Respondent/Accused, would take some of it. (iv) also stated, that their mother, the 2nd Respondent/Accused, did warn them on few occasions not to tell their father, about what as doing to them when they go to his office. They also stated, that sometimes they were taken to their elder sister, . According to the girls, whilst Boss were doing those things to them in the of s their mother did, Ursula too stayed outside and waited for them. (v) lso stated, that those things were happening to them since last year when she was introduced to the man by her mother and that usually it was after they returned home from school that their mother, the 2nd Respondent/Accused, would ask them to dress up into their casual clothes and then take them by bus to Providence at Boss' office. Leah recounted an incident when the man, Boss, put his hand under her clothes and touched her vagina, and when she shouted "no" the man got angry with her and told her that she won't come again in his office. On that day, both of the girls received from 100 rupees each. When they left the office their mother was outside waiting for them. She did ask them how much money they had received from Boss. (vi) recounted another incident which she said happened on a Saturday. On that particular day, they were compelled by their mother, the 2nd Respondent! Accused, to go with their eldest sister at Providence. When they got there Boss gave Ursula money to go and buy juice. then called her into his office and asked her to stand by him as he removed his trousers and asked her to touch his penis whilst he touched her vagina. Boss then gave her SR200 as she left his office. en entered his office, and later told that she too touched Boss' penis and received from him SCR 200.00. (vii) On the 27th March 2023, at 1600 hours, inspector Gedeon assisted by Social Services Officer Conine Micock, took the two girls to providence to identify the office as well as Boss himself. The two girls showed them a white building above an Auto Parts Shop, office room number 54, written on it Sylview Del Construction Builders. As they were all coming out of the building, the two girls identified Boss as he was about to get into a black car. As Boss noticed that the police were around he left the area. The police recorded his car registration number as black and on the same day he was later arrested at Pointe Larue. (viii) Boss, the l " Respondent/Accused has since been interviewed about the alleged incidents and denied the allegations made by the two girls gainst him. He stated, that he knows the two girls as well as their mother the 2nd Respondent/accused. According to him, the latter has been coming to his office asking for money as well as the two girls who used to come after school hours and weekend. He confirmed, that sometimes the two girls came with their mother and sometimes with their sister Ursula, and that he gave then between SCR 200-400. (ix) Upon her arrest, the mother of the 2nd Respondent/Accused, confirmed, that she has known since 2022 and that he has been helping her when she was in need of money. She also conceded, that she has sent her two daughters to collect money from several times and that she has left her two daughters in his office in her absence. She also conceded, that MD, had showed her daughters films on his computer although she did not ype of films they were shown. [4] It is deponed by Detective Hoareau, that police investigation has led them to discover that there are other girls that have been sexually assaulted by the 1st Respondent/Accused. In her affidavit in support of the application to have the 1st and 2nd Respondents/Accused remanded in police custody, she makes the following averments amongst others; "12. That aged 13years old stated, that during the year 2022, she wasforced to have sexual intercourse with and after that she was given SCR 1000 out of which took S she had sexual intercourse with him several times and he would then pay her SCR 1000 or SCR 500". [5] The grounds upon which this application to remand the l " and 2nd Respondents/Accused in police custody which the Applicant seeks to rely on are; (i) That the 1st and 2nd Respondents/Accused are charged with very serious offences with sentences ranging between 20-25 years. (ii) That the offence of sexual assault involving children victims is prevalence, coupled with a genuine requirement of public interest given that it is "endangering the peace, public order and the tranquillity of our society. (iii) That there is a necessity of keeping the 1st Respondent away from the victims of the alleged offences and other girls of tender age given his propensity and tendency to prey on vulnerable girls. (iv) That there are substantial grounds to believe, that if the 1st Respondent is not remanded in police custody, he would obstruct the course of justice by interfering with the victims/witnesses and other potential witnesses. (v) That for the Respondents' own safety and protection from any possible retaliation from other members of the victims' family. (vi) That the 2nd Respondent who is the mother of the alleged victims, if released on bail, may interfere with the victims/witnesses as well as other witnesses from the family. [6] Learned counsel for the pt Respondent/Accused vehemently opposed the application urging the court to have regard to her client's affidavit evidence in reply to the application, and to consider remanding her client to conditional bail instead. In his affidavit in reply, the 1st Respondent/Accused avers that, on the law he has been advised and verily believes to be the law, and looking at the charges against him, that under Section 21 of the Penal Code, "persons not to be twice criminally responsible for the same offence". [7] It is also averred by the 1st Respondent! Accused, that he has been advised by counsel, and verily believes the same to be true, that Detective Hoareau's affidavit is fraught of hearsay statements that makes the affidavit defective and renders it inadmissible as evidence against him. As averred by the 1st Respondent/Accused, the court cannot therefore rely on the averments in the affidavit to decide whether or not to remand the 15t Respondent/Accused in police custody. [8] It is further averred by the 1st Respondent/Accused, that he has been advised by counsel and verily believes the same to be true, that the affidavit evidence of Detective Hoareau is also defective because the averments made therein are not within the personal knowledge of the deponent, and that, furthermore, she fails to disclose the source of these averments that are not within her personal knowledge. [9] It is the averment of the 1st Respondent/Accused, that although the offences of which he has been charged is serious, he has been advised, and verily believes the same to be true, that under Article 19 (2) of the Constitution, he is innocent until he is found guilty, or pleads guilty, and therefore he should not be remanded in police custody. [10] The 1st Respondent/Accused avers, that amid all the allegations of the sexual assault against him towards the two 11 year old girls, there is no medical evidence to support the allegations given that the doctor who examined them found that "the external genital is normal and clean, the hymen appears intact, the anal area is normal". The pI Respondent/Accused contends that, all in all, the affidavit evidence in support of the application to remand him in police custody does not disclose a prima facie case against him. [11] The l " Respondent/Accused also avers, that he has been advised by counsel and verily believes the same to be true, that although this country hasn't got a Bail Act, by virtue of Article 18 (7) of the Constitution, he has a right to bail whether conditionally or upon reasonable conditions for appearance in cOUl1at a later date. The 1st Respondent/Accused further avers, that he has been advised and verily believes the same to be true, that the seriousness of the offence of which he has been charged cannot be a ground to deny him bail given that the cOUl1can still release him on bail with or without conditions. [12] On the facts as averred by Detective Hoareau, the I" Respondent/Accused denies that he committed the acts alleged against the two children Leah and Ezra, although he does admit, that he knows both of the two girls as well as their mother, the 2nd Respondent/Accused who used to come to his office to seek for financial help. According to the 1st Respondent/Accused he has been helping the two girls with money to buy food and school materials, and that he has done so because he is a member of the Lion's Club and doing charity work is part of the club's motto. [13] The 1st Respondent/Accused is of the view, that the averments made by Detective Hoareau in her affidavit in support of the application for remand in police custody are not facts but mere baseless allegations made by the two girl's father whose motive is to try to get money from him. The 1st Respondent/Accused avers, that it all started after the father of the two children/girls, one Roch Joubert, had demanded SCR 5000 from him which demand he did not accede to and was thus threatened with the words, "I will see what he can do". It is averred by the 1st Respondent/Accused, that the police should have probed into the complainant's motive which they did not. [14] The I" Respondent/Accused denied the averments at paragraph 5 of Detective Hoareau's affidavit, averring not only that he did not do those acts, but also, that the two girls were never left in his presence without their mum (the 2nd Respondent/Accused) being present. The 1st Respondent/Accused takes issue about detective Hoareau's averment that he forced the two girls to watch sex videos, stating, that those sex videos should have been made available for him to see. [15] As to his personal circumstances, the 1st Respondent/Accused avers, that he has a company which is a licensed building contractor that employs several foreign workers who have been facing hardship ever since he has been on remand in police custody. He avers, that there are issues in respect of their Gainful Occupation Permit (GOP) which he needs to attend to as well as the incomplete works under the various construction contracts which has not been fully honoured. [16] At the end of his affidavit in reply to the application that he be remanded in police custody, the 1st Respondent/Accused has this to say; "33. That I pray that based on the very special circumstances of my case that the cOUl1 remand me to bail subject to conditions to ensure my appearance for my case on the dates fixed by the court as per Section 179 of the Criminal Procedure Code". [17] In reply to the supporting affidavit to the application for remand in police custody, the 2nd Respondent! Accused avers, that she was not aware that her two daughters ere being sexually assaulted by the 1sl Respondent! Accused She also avers, that had she been aware of that she would have never allowed her daughters to be sexually exploited. She denies ever leaving her two daughters in the presence of the 1sr Respondent! Accused only. The 2nd Respondent! Accused further avers, that she was unaware of any investigation of alleged abuse of her two daughters until a social worker by the name of Ms Micock spoke to her about it. She denies that she has had personal knowledge that her two daughters were being sexually exploited, although she does admit having received little money from the 1st Respondent! Accused few times. [18] It is averred by the 2nd Respondent! Accused, that the 1st Respondent! Accused is aware that she is a single mum and the sole provider for her two daughters, and to help her he has in the past offered her groceries and small sums of money which were not money in return for allowing her daughters to be assaulted, raped or exploited by him as has been suggested. The 2nd Respondent! Accused denies that she was aware that her two daughters were being sexually assaulted by the 1st Respondent! Accused. She also denies that she took them to his office to be sexually assaulted by him. She avers, that when she heard of the allegation that the 1st Respondent! Accused was sexually assaulting her two daughters she questioned them about it and they both denied it and said "No" to her. [19] The 2nd Respondent!Accused also avers, that she and her daughter Leah has a very close relationship and each time she has asked her whether the 1st Respondent! Accused has ever indecently assaulted her by touching her private part, her response has always been "no". The 2nd Respondent! Accused further avers, that in her interactions with her two daughters she has never noticed anything abnormal or any suspicious behaviour on their part, She admits, that did some time accompany her to Providence when she had to go and collect groceries and, or money from the 1st Respondent! Accused. [20] It is averred by the 2nd Respondent! Accused, that she has never compelled her two daughters o go to the I" Respondent/Accused's office at Providence to be sexually exploited by him. She avers, that on one occasion, her two daughters' elder sister by the name of did take them to Providence to the 1st Respondent/Accused's office to collect the financial aid which was being given to them by the 1st Respondent/Accused because of his kind-hearted, knowingly, that they were struggling to survive due to the lack of financial assistance. [21] It is also averred by the 2nd Respondent/Accused, that as per Article 18 (7) of the constitution, the cOUl1can release her on bail pending trial even if that would entail conditional bail. The 2nd Respondent! Accused avers, that although the offence of which she has been charged is serious, she is innocent, in that, she never did what she has been accused of, and furthermore, under the constitution, every person charged with an offence is innocent until proven guilty or pleads guilty. It is further averred by the 2nd Respondent/Accused, that there are only three grounds upon which the Applicant is pressing for her to be remanded in police custody, notably, (i) that the offence of which she has been charged is very serious, (ii) for her own safety and (iii) to avoid the possibility of her interfering with the alleged victims/witnesses all of which she avers will not happen, and by releasing her on conditional bail those things would be avoided. [22] As regards to her interfering with the two girls who are potential witnesses thus obstructs the course of justice, the 2nd Respondent/Accused avers, that this is not possible because the two girls are not in her custody, them having been taken away from her to a place unknown to her. [23] It is further averred by the 20d Respondent! Accused, that by granting her bail this will ensure that a proper balance is struck between her Constitutional right to liberty under Article 18 of the Constitution and the alleged victims' quest for justice. She reckons, that the affidavit in support of the application to remand her in police custody fails to disclose sufficient reasons for her continued detention in police custody. The 2nd Respondent/Accused also depones, that she is a carer who cares for her grandma, one nd that by remanding her on conditional bail that would enable her to provide her with the services she needs. [24] The grant or refusal to grant bail lies within the discretion of the COUlt. The grant or denial of bail is determined by way of application of the law to the facts and circumstances that the offence or offences were allegedly committed by the accused as laid before the court by way of affidavit evidence. At the same time, the right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping the accused pending trial, and at the same time, to keep the accused constructively in the custody of the court whether before or after conviction, to ensure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. [25] Thus, an application as the present one seeking to have the 1st and 2nd Respondents/Accused remanded in police custody strikes at the core of the most important constitutional right afforded to every person in this country. This is the right to Iiberty under Article 18 (1) of the constitution. That having been said, means, that every person charged with a criminal offence has a right to bail and that such right can only be denied after the court has properly ascertained that compelling reasons exist in law and on the facts which justify denial (see Esparon vs Republic [2014]SLR 331). In Esparon (Supra) the court said, that the right to liberty can only be restricted in "exceptional circumstances". [26] Therefore, it was incumbent of the Applicant/Prosecution, that in seeking for an order of this court to have the 1st and 2nd Respondents/Accused remanded in police custody to satisfy the court, that there are compelling reasons in law and on the facts of the case, to remand the 1st and 2nd Respondents/Accused in police custody. In giving due consideration to the affidavit evidence for the grant and opposition to the application to remand the 1st and 2nd Respondents/Accused in police custody, I've kept in mind, that under Article 19 (2) of the constitution, "every person who is charged with an offence is ilmocent until the person is proven guilty or has pleaded guilty". [27] In essence, for the application to succeed, first and foremost, the Applicant/prosecution had by way of affidavit evidence to establish a prima facie case against the accused persons that led to their arrest, charge and prosecution. This approach is in line with the requirements of the guidelines spelt out in Beharry v The Republic SeA 11 of 2009 when the court said the following; "To support detention, the prosecution must demonstrate a prima facie case against the accused, then the court should determine whether the Defendant may be released with or without conditions for the purpose of ensuring that the Defendant appears on a subsequent trial date. The seriousness of the charge requires the consideration of the facts of each particular case and the evidence of the prosecution gathered so far. This is independent of consideration such as whether there may be interference with witnesses or there is a breach of bail conditions ". [28] In other words, prima facie case in the sense that, whether, looking at the evidence at first sight, the first impression is that there are some evidence linking the 15( and 2nd Respondents! Accused with the alleged offences. Hence, to establish a prima facie case, the prosecution had to only offer some credible evidence against the 15( and 2nd Respondents! Accused, and the standard of proof the Applicant!Prosecution must satisfy the cOUl1at a prima facie case stage is lower than proof of an accused's guilt. In that respect, I hold the view, that if an Applicant!Prosecutor cannot establish a prima facie case against an accused, that almost certainly means, that the police did not have probable cause to support the arrest of the accused in the first place. [29] I have thoroughly read the affidavit evidence of detective Moira Hoareau in support of the application for the 1st and 2nd Respondents! Accused to be remanded in police custody, and the 1st and 2nd Respondents! Accused reply to the same opposing the application, as well as their prayer that they be remanded to conditional bail. Although in their affidavit in reply the 1SI and 2nd Respondents!accused have raised few valid points in their affidavit, the affidavit of detective Hoareau does contain sufficient materials in terms of evidence ofthe probable cause that has caused the arrest, charge and prosecution of the 1st and 2nd Respondents! Accused. Although not tested as would be incumbent on counsels for the l " and 2nd Applicant! Accused in cross-examination in the trial of the case proper, there is some evidence of a prima facie case against the 151 and 2nd Respondents/Accused for the different offences of which they have been accused and charged for the purposes of determining this instant application. [30] I note from the 1st Respondent/Accused's affidavit in reply that he depones that he knows the co-accused and her children because he was helping then out financially whenever he could. According to him, he did that because of his membership at the lion's club. In otherwords, he had to step into the shoes of the biological father of the two children, whom he said was not helping the children's mother, the 2nd Respondent/Accused. On the other hand, the 2nd Respondent/Accused, in her affidavit in reply, does acknowledge that the l " Respondent/Accused did offer her financial help from time to time without giving a satisfactory explanation why he had to do that besides saying that he is a "kind hearted man". I am therefore satisfied, that the Applicant/prosecution has tendered sufficient evidence of a prima facie case against the 15t and 2nd Respondents/Accused. [31J Moving on to the grounds upon which the Applicant/prosecution relies on for this court to remand the l " and 2nd Respondents/Accused in police custody, I note, that one of the grounds is that the offences of which they have been charged are very serious. It is settled law, that the seriousness of the offence cannot be a standalone ground to remand an offender in police custody. However, in Be haITY(supra) the COUlt did say, that the serious ness of the offence can be considered in assessing the likelihood of an offender absconding. In this regard, given that the 1st Respondent/Accused is a man of means who is thus a flight risk, I have also taken those matters into consideration in assessing the likelihood of him absconding. [32J It is also averred in detective Hoareau's supporting affidavit, that "the offence of sexual assault is on the rise in this country endangering the peace, public order and tranquillity of the society". Although it can be argued, that this cannot be a valid ground to remand someone in police custody, this raises the question of public interest in sexual offences involving children. In respect of the permitted scope of the denial of the right to liberty in the House of Lords O(FC) Appellant vs Crown Court of Harrow (Respondent) case, an appeal from the high Court of Justice, the COUlt quoted and endorsed a short passage from the court's decision in Ilijkov vs Bulgaria, one of the Strasbourg case laws, when the court said the following; "84. The court reiterates that continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which notwithstanding the presumption of innocence, outweighs the rule of individual liberty ... where the law provides for a presumption in respect offactors relevant to the grounds for continued detention ... the existence of the concrete/act outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated". In Be HalTY (Supra) the COUlt formulated a set of guidelines to guide the COUlt in its approach in considering an application of this nature. The COUlt endorsed the proposition that continued detention can be justified in a given case if there are specific indications of a genuine requirement of public interest that outweighs the respect of individual liberty. [33] The likelihood of interference with potential witnesses and thus obstruct the course of justice is in my considered opinion real, given that the 1st Respondent! Accused is a man of means. He has been assisting the 2nd Respondent! Accused financially, he is likely to financially influence potential witnesses and thus interfere with them. The possibility is more likely than not given that none of the potential witnesses has thus far testified against the 15t and z= Respondent! Accused. [34] In the circumstances, the COUlt has seriously considered the application for remanding the 15t and 20d Respondents!Accused in police custody in the light of their opposition to the application. The Court is satisfied, that a prima facie case against the 15t and 2nd Respondents! Accused has been made out as well as the grounds upon which the Applicant!Prosecution seeks to rely on to have them remanded in police custody. The COUlt would be willing to reconsider any future application once the key or star witnesses in this case have testified. [35] Therefore, both the 1st and 2nd Accused persons shall be remanded in police custody for 14 days as of the date of this order. Signed, dated and delivered at Ile du Port 28 June 2023. 15