R v D’unienville & Ors (CO 03 of 2025) [2025] SCSC 80 (5 June 2025)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search [{"id": "h1_1", "type": "h1", "title": "15 S v Ruturi (HH 26 of 2003) [2003] ZWHHC 26 (11 May 2003) at page 9", "children": []}] SUPREME COURT OF SEYCHELLES Reportable CO 03/2025 In the matter between: THE REPUBLIC Prosecution (rep. by Mr Adam Afif) versus LUIGI STEPHANE NIOLE 7th Accused (rep. by Ms Nissa Thompson) Neutral Citation: The Republic v Myriam D’unienville & Ors (CO 03/2025) 5th June 2025 Before: N. Burian, J Summary: Bail Application Heard: 22nd May 2025 Delivered: 5th June 2025 RULING N. BURIAN, J Introduction This Ruling arises from the bail application of Luigi Niole (‘the Accused’) in which he is asking to be released on bail pending trial. Background The Accused was charged on the 26th March 2025 under amended formal charge jointly with another co-accused to three counts for offence of money laundering. The Accused has been on remand since the 30th January 2025, he objected to the application and it was determined by the court on the 31st January 2025 that there were substantial grounds set out to remand him in custody. Bail Application The Accused argues that two other co-accused have been released on bail whilst he remains in custody and as such this highlights the need for equal treatment of accused persons in similar circumstances and renders his continued detention unjustified. It is argued that a change in circumstances occurred when the Prosecution chose to ‘downgrade’ the charge so that the predicate offence underlying the money laundering charges have been reduced to ‘issuing a cheque without provision’ rather than ‘drug trafficking’. It was pointed out that Accused No.10 remains charged with money laundering with a predicate offence of ‘drug trafficking’, a more serious offence, and that she was released on bail. As such, considering the principle of fair treatment and uniformity he is of the view that he too should be released on bail pending trial. The Prosecution are objecting to the application for bail and are relying on the facts and circumstances as laid out in the initial affidavit duly sworn by Detective Corporal Ruddy Pillay and the 2nd affidavit duly sworn by Detective Sergeant Stenio Cadeau in support of their reply to the present application. It is averred that the seriousness of the offence remains undiminished as the accused stands charged with three serious counts of money laundering to a sum of SR 3,045,000/-. According to the Prosecution, the courts have consistently viewed such offences with strict scrutiny, given their potential to undermine the integrity of the financial system and facilitate further criminal activity. Secondly, the Prosecution has argued that there are no changes in circumstances to justify release on bail. Reliance has been placed on the case of Republic v. Alphonse1 to reaffirm that bail should not be granted unless there is a change in circumstances warranting reconsideration of remand. It is argued that the accused has failed to demonstrate any such change, and the mere amendment of the predicate offence does not outweigh the compelling public interest in ensuring that serious financial crimes are prosecuted effectively and the integrity of the financial system is upheld. Thirdly, in respect of the constitutional considerations, the Prosecution has argued that the accused person’s right to liberty is not absolute and may be lawfully restricted where necessary. The Prosecution has also pointed out that there are clear distinctions between the accused and Accused No. 10. The accused is charged with three counts of money laundering involving a total sum of USD 3,045,000, whereas Accused No. 10 is charged with only one count of money laundering. The charges against the Accused are brought under Section 3(1)(A)(a) and (c) of the Anti-Money Laundering Act, which allege that he ‘knew’ or ‘believed’ the relevant property represented the proceeds of criminal conduct. In contrast, the charge against Accused No. 10 falls under Section 3(1)(B)(a), where it is alleged that she was ‘reckless’ as to whether the property represented the benefit of criminal conduct. [10] It is further averred that the distinction in ‘mens rea’ is significant, as it reflects the greater degree of culpability attributed to the Accused. Therefore, considering the seriousness of the offence, and the fact that there is no change in circumstances, it is argued that the constitutional and public interest considerations far outweigh any reasons to release Accused No. 7 on bail at this stage. Submissions by counsel [11] Counsel for the Accused argues that there has been a change in circumstances in this case to warrant her client’s release on bail. She highlighted that bail is the rule and that remand is the exception, and that the courts’ role is not to punish an accused person by denying them bail if reasonable conditions can be imposed to mitigate the risk of absconding and interference with the course of justice. [12] Counsel points to the fact that the charge was amended two months after her client’s initial arrest and states that the amendment indicates that the Prosecution has now determined that there is no evidence of any connection to drug trafficking against her client. It is argued that the original bail application was based on her client’s alleged connections to an international drug trafficking operation and that there was a great risk of him absconding. However, now that the predicate offence has been reduced to ‘issuing cheque without provision’ this is a material change in circumstances which warrants a reconsideration of her client’s remand. [13] Counsel for the Accused has argued that the case should not be reduced to a mere numerical assessment of the charges. She emphasized that her client’s constitutional rights remain intact, particularly the presumption of innocence until proven guilty. She also highlighted the significant delay expected before the case reaches a conclusion, suggesting this delay should weigh in favour of her client. In support of her argument, she referred the Court to the case of Danny Bresson v. The Republic2, which case examined what constitutes a change in circumstances. [14] Ms Thompson stated that Accused No.6 and Accused No.10 had been released on bail. She argued that all persons charged with the same offence should be treated uniformly and fairly. It was further stated that the particulars of the offence point to Accused No.10 being charged with a more serious predicate offence as she admitted to transporting large sums of money out of the Republic for Accused No.1. It was further argued that her client on the other hand, has no international connection. [15] Counsel submits that there would be a disparity of treatment if her client was not granted bail and that Article 273 of the Constitution guarantees her client to equal protection under the law. She asked the Court to consider the decisions of other courts, whereby accused persons charged with the offence of money laundering had been granted bail. Reference was made to the cases of Republic v Anthony Boue4 and Republic v Viraf Udwadia5, Republic v Nichol Gabriel6, Velda Tirant v Republic7. [16] It was reiterated that the Accused is able and willing to comply with any bail conditions imposed upon him and that there is no evidence substantiating the allegations that her client is a flight risk. [17] In reply, the Prosecution have placed emphasis on the assertion of a change in circumstances. It is argued that the seriousness of the offences and the involvement of the Accused in the criminal enterprise remains material and that the amendment to the predicate offence does not result in a less serious offence nor does it result in a change in circumstances to warrant a release on bail. [18] In reply to the claim that the Accused should be given uniform treatment and be released from detention, it has been pointed out that because of the amended charge the accused now faces three (3) counts of money laundering as opposed to Accused No.10 who faces only one count. The particulars of the offence for the accused are also different as it involves an element of knowledge as opposed to ‘recklessness’ on his part. Therefore, the offences for which he is charged are distinctly different from that of Accused No.10. Law and Analysis [19] I have carefully listened to the submissions made before the Court and I have given close and meticulous consideration to the affidavits and supporting documents in support of the application for release of the accused. I have also given the same consideration the affidavits in reply and its supporting documentation. [20] From the very outset and before I delve into the merit of the application for bail, I wish to point out that in my ruling given on the 30th May 2025 in respect of the application for bail of Accused No. 4, 5, 8 and 9, I canvassed in great length the issue of the trial date and alleged delay and as such I will not rehearse my findings on this matter. I wish to state however that my view remains unchanged and that the Court has done its upmost to secure the earliest possible dates within a reasonable time. The fact remains that the offences for which the accused persons have been charged are of a serious nature and if proven and found guilty, they will mostly likely all serve a custodial term well above the length of time that it will take to conclude this case. Constitutional considerations [21] Article 18 provides a right to liberty which is not absolute and subject to permitted derogations. The permissible derogations relevant to the present case concern the seriousness of the offence with which the accused person has been charged, the substantial grounds for believing that he would fail to appear for the trial or would interfere with the witnesses or would otherwise obstruct the course of justice or commit an offence while on release8. [22] Bail is a constitutional right provided for under Article 18(1) of the Constitution. Bail remains the rule and not the exception. As provided for in Esparon v the Republic9, such right can only be curtailed in exceptional cases where the Prosecution has satisfied the court that there are compelling reasons in law and on facts for remanding the accused. I agree with the Learned Judge in case R v Joseph & Ors 10 that although Article 18(7) provides for derogations whereby this right to liberty can be curtailed, I do not believe that this list of derogations is an exhaustive one and I agree that 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 or granting bail to the accused. This position was supported in the case of Beeharry (supra) whereby it was held that the right to liberty is subject to the rights of others and to the public interest. [23] In the case of Beeharry (supra) it was stated that – “A person must be released unless the state can show there are relevant and sufficient reasons for continued detention, including an assessment of risks of absconding or re-offending. Continued detention can be justified if there are specific indications of a genuine requirement of public interest, which, notwithstanding the presumption of innocence, outweighs the rule for respect of individual liberty. To support detention, the prosecution must show a prima facie case against the accused, and where not released on bail, the accused has the right to be tried within a reasonable time. Further, that seriousness of the offences charged and the severity of the penalty linked to that offence though relevant to a decision of whether the accused should be refused bail and denied the right to personal liberty, are not of themselves grounds for refusing bail. [24] The Learned Judge in Joseph found support in the International Covenant on Civil and Political Rights (ICCRP) which Seychelles ratified in 1992 which provides that “it shall not be the general rule that persons awaiting trial be detained in custody, but release may be subject to guarantees to appear at trial.” These guarantees include conditions of reporting to the police, curfew, not committing any offences whilst on bail, not contacting or interfering with witnesses and victims or otherwise obstruct the course of justice and a total surrender of all travel documents. [25] The principle reasons for which bail is being opposed are as follows: (i) seriousness of the offence as impacted by the severity of sentence; (ii) change in circumstances being the length of trial, release of two co-accused and an amendment to the charge. I will proceed to consider each of these reasons individually below. Seriousness of the offences: [26] In the present case, the accused person has been charged with the serious offence of Money Laundering which carries a maximum sentence of 15 years’ imprisonment and a maximum fine of SR 5 million. The accused person if found guilty is therefore likely to face a serious custodial sentence. [27] It was held in the case of The Republic v/s Raymond Kenneth Thomas and Robert Roland Lai Lam 11 that the seriousness of the offence does not mean only offences that carry hefty fines and/or long term of imprisonment but must also be considered in a broader perspective, including the prevalence of the offence; the prevailing tendency of such crime, the necessity to root out or curb the vice the negative impact of the offence on society; whether the offence is the act of a sole individual or a possible conspiracy involving other parties who may be directly or indirectly, openly or secretly involved; amongst others. [28] It is my considered view that the seriousness of the offence remains undiminished. The offences for which the accused person is charged involve an element of organized crime in the commission of the said offences with a further international dimension. I also take notice of the fact that there is an increase in drug related crimes in our country which are becoming more sophisticated (i.e. using financial schemes to find funds) and that continue to have a negative impact on our society. These types of crimes in my opinion must as such be considered with the upmost seriousness. Change in circumstances Delay in completion of trial: [34] In the case of Esparon (Supra) the COA explored the various reasons that can cause a delay in the hearing of a case12 and in the case of Mwai and Fred (Supra) the Learned Trial Judge observed that delay is something inherent to the criminal process unless it is inordinate or unreasonable delay13. [35] The decision whether to remand or release an accused on bail remains at the discretion of the court. When considering whether there has been a material change to warrant a variation of the remand, I cannot consider the length of time as a factor by itself but must look at all the circumstances of the case. In this instance, the fact that this case involves very serious aspects of human trafficking, the offences of conspiracy to import illicit drugs and Money laundering cannot be ignored. I need to consider the public interest and what effect the potential release of the individual would have on society. [36] The present case is one of a complex nature and will require a month long sitting, from the 17th May until 12th June 2026 to hear all the witness testimony. As such, I do not believe there to be any unreasonable delay which could be taken as a material change in circumstances warranting the release of the accused person. Release of two co-accused: [37] With respect to the second submission regarding consistency in judicial decisions, the Court agrees that the principle of parity is important. However, bail remains a discretionary remedy that must be assessed based on the specific facts and context of each individual case. [38] As rightly pointed out in the case of Satyendra Singh v State of U. P14: “….one Judge may be impressed by a particular point not considering sufficient in law for granting bail…another Judge is free to take a different view and may refuse bail…as such bail is granted on totality of facts and circumstances.” [39] It is my view that this principle is applicable and relevant to the case in hand. The decision to release Accused No.10 on bail was taken by my Learned Colleague before I took over as Presiding Officer. That is not to say that I would have taken a different view, but simply that I was not part of the decision-making process. At the end of the day, the decision whether to detain or release an accused remains with the Presiding Officer and as such I retain my judicial discretion to take a different view, if I so feel just, when considering the current application before me. [40] In the case of S v Samson Ruturi15: “One accused may have to be treated differently from another because of certain factors, either personal or related to the offence…In the case of admission to bail on jointly charged persons may in the view of the court, be likely to abscond and the other not. One may be more likely to interfere with evidence or witnesses and the other not…and one may be more much more closely connected to the offence and more liable to be convicted and the other not…” [41] As stated by Zisengwe J in the case of Shamu (supra) “equal treatment does not necessarily imply similar outcomes, equal treatment to my mind means being subjected to the same objective criteria in the resolution of the matter as opposed to being subjected to whimsical or capricious considerations” [42] Each bail application must be evaluated on its own facts. Counsel has referred to comparative cases and while these may be persuasive, they are not binding. The fact that bail was granted in a similar case may inform my decision, but it does not oblige this Court to reach the same conclusion. The grant or refusal to grant bail lies within the discretion of the Court. [43] Therefore, considering all the criteria on which detention is being sought (i.e. seriousness of the offence, interference with witnesses and victims and risk of absconding etc), I am of the view that having closely examined the affidavits before me, I am satisfied that the circumstances of the accused differ significantly from those of Accused No. 10. [44] Firstly, the accused is facing three counts of money laundering involving substantially larger sums than those attributed to the Accused No.10. Secondly, the investigation has revealed that the Accused engaged in multiple transactions over an extended period and was in communication with Accused No.1 regarding these transactions (paragraph 34 of the original affidavit). According to the investigating officer in paragraph 35, these transactions included the structuring and/or smurfing and layering which are common modes of concealing illicit funds. The concealment took place through multiple cash deposits being made in varied amounts multiple times a day, two to three times per month which were both below and above the threshold of reporting. These funds were then moved almost immediately to make tracing difficult. I am therefore of the opinion that the method of money laundering observed indicates a far more sophisticated scheme compared to merely agreeing to transport money out of the jurisdiction. [45] Given these distinctions, I am satisfied that the circumstances are materially different and warrant a distinct approach in determining whether the accused should be remanded or released on bail. The accused’s deeper involvement in the operation suggests a more integral role within the criminal enterprise. Consequently, the risks of interference with witnesses or victims, as well as the risk of flight, are significantly heightened. Change in predicate offence [46] I am of the view that money laundering is inherently a serious offence, regardless of the nature of the predicate offence. This is because money laundering serves to conceal or disguise the illicit origins of funds, thereby undermining the integrity of the financial system. Once the elements of money laundering are established, the offence is made out. The seriousness or otherwise of the predicate offence does not alter the fact that laundering was attempted or occurred. While the nature of the predicate offence may be relevant at the sentencing stage, potentially as a mitigating factor, it does not diminish the criminality or significance of the laundering itself. If courts begin to treat money laundering less seriously based on the underlying offence, there is a real risk of conveying the incorrect message that laundering certain criminal proceeds is somehow more acceptable than others. [47] Even if the predicate offence is not among the most serious, such as violent crime, drug trafficking, or organized crime, money laundering remains a grave offence. It is inherently serious because it facilitates the concealment of financial wrongdoing and subverts regulatory and legal oversight. In the circumstances, I disagree with the submissions of Counsel for the accused that the amendment to the charge has resulted in a material change in circumstances and a downgrade to the charge which would warrant a release on bail. Conclusion [48] Having carefully considered the submissions, along with the arguments from both parties, the nature of the charges, and the broader interest of justice, I am satisfied that no new circumstances have been raised by the Accused to merit a reconsideration of his remand in custody. As such the application for variation of remand is denied. Signed, dated and delivered at Ile du Port on 5th June 2025 ___________ N. Burian, J 1 (47 of 2006) [2008] SCSC 10 (22 June 2008) 2 SCA 44/2014 3 (1)Every person has a right to equal protection of the law including the enjoyment of the rights and freedoms set out in this Charter without discrimination on any ground except as is necessary in a democratic society. 4 FH44/2021 5 CO34/2023 6 CO55/2020 7 CR47/2022 8 See Article 18 (7) (b) and (c) of the Constitution 9 SCA 1,2 and 3 of 2014 10 CO 52/2016) [2016] SCSC 892 (15 November 2016) 11 (14 of 2004) [2004] SCSC 14 (07 April 2004) 12 Paragraph 3: “delay to the hearing of the case can be attributed to several factors, the re-listing of the case before a Judge different from the one who was originally due to hear the case, amendment of the indictment to add two other accused… accused changing counsel, continuation of other partly heard cases on the date this case was fixed for hearing, and the difficulty to find suitable dates for hearing in an otherwise busy cause list.” 13 Paragraph 17: “Delay in concluding criminal cases may be for different reasons, all having to do, mainly, with the court’s diary, counsel’s diary and sometimes unforeseen circumstances.” 14 (1996) 20 All Cri R 867 : 1997 AIHC 1051 15 S v Ruturi (HH 26 of 2003) [2003] ZWHHC 26 (11 May 2003) at page 9 6