R v Vital (CM 136 of 2024 (Arising in CR 64 of 2024) [2024] SCSC 175 (18 November 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 8 In the matter between: THE REPUBLIC (Represented by Mrs Nissa Thompson) vs Reportable CM 136/2024 (Arising in CR 6412024) Applicant MIKE JEAN VITAL Respondent (Represented by Mr. Basil Hoareau & Mr. Joshua Revera) Neutral Citation: Before: Summary: Heard: Delivered: Adeline J Oral submissions 14 November 2024 18 November 2024 FINAL ORDER The application fails and is accordingly dismissed for the reasons specified in this ruling, B Adeline, J RULING INTRODUCTORY BACKGROUND FACTS: [1] The background facts to this application is that on a charge of trafficking in a controlled drug by means of being found in unlawful possession of a controlled drug with intent to traffic contrary to Section 9 (1) of the Misuse of Drugs Act, 2016 read with, Section 19 (1) (c) of the said Act and punishable under Section 7 (1) and the Second Schedule of the said Act, the accused was remanded to bail on certain bail conditions by way of an order of this COUlimade on the 24th October 2024. Page 2 of 8 [2] One of those conditions stipulated in the said Court order, is that the accused shall surrender his passport or any travelling documents, if any, to the Registrar of the Supreme Court. Without being too specific, it was reasonably expected, that the accused would tender to the Registrar of the Supreme Court a valid passport or any valid document. [3] Unfortunately, the Respondent/Accused surrendered an invalid passport which on the day it was deposited at the registry of the Supreme Court was unnoticed. When it was noticed that the passport deposited was invalid, staff from the criminal registry sought to enquire from the Immigration Department whether the accused has any valid passport in its possession. It was confirmed, that he was issued with a valid passport on the 28th September 2021 which passport remains valid until the 28 September 2026. [ ] It is within this background, that this application for remand of the Respondent/Accused in Police custody finds its way before this Court. THE APPLICATION AND AFFIDAVIT EVIDENCE: [4] With application, there is attached thereto an affidavit swom by Inspector Johnny Malvina ("Inspector Malvina") who is in charge of the Organize Clime Unit in the Police Force. In the supporting affidavit to the motion, Inspector Malvina, inter alia, avers the following; "5. That the Respondent has been charged with the offence of trafficking a controlled drug as per theformal charge dated 241h October 2024. 6. That on the same day, the Prosecution movedfor stringent bail conditions to be imposed on the Respondent including the surrender of his travel documents. I beg to refer to the Courtproceedings of the 241h of October 2024 attached and marked as JM2. 7. That I have been informed by counselfor the Republic, which 1verily believe to be true, that the matter was mentioned on.the 41hNovember 2024 as previously set by the Court to ascertain his compliance with the bail conditions. That further, during the mention, it transpired that the accused had deliberately surrendered an invalidpassport to the Court. 1beg to refer to the Courtproceedings of 41hNovember 2024 attached and marked as JM3. Page 3 of 8 8. I have verified whether the accused has a valid passport with the Seychelles Immigration Department, and Mr. Galmier Francois confirmed that the Respondent holds passport N0167858 issued on the 28,h September 2021 valid to 28 September 2026.1 beg to refer to the letterfrom the Immigration Department dated 7 November 2024 attached and marked as JA14. 9. That based on his deliberate breach of the bail conditions to surrender his valid passport, 1 have reasonable ground to believe that the Respondent is aflight risk and may abscond to flee from justice considering the seriousness of the offence. " [5] Inter alia, the deponent prays this C0U11 as follows; "c. That in view of his deliberate non-compliance with the bail condition to provide a valid passport, 1 have reasonable grounds to believe that the Respondent is aflight risk and may if released on bail, which will impede the course of justice. " abscond to flee from justice, [6] In an affidavit in reply the Respondent/Accused, inter alia, makes the following averments which is considered to be most pertinent, notably; "7. I aver that on the 24'" October 2024, the Prosecution raised before this Honourable Court, that 1 allegedly breach my bail conditions by not surrendering a valid passport, accusing me of deceitfully submitting an expired one. 8. That following this, 1 made inquiries with my concubine, Jelina Esparon, regarding the alleged new passport. She reminded me that we had applied for a new passport in 2021 to travel to Chennai, India, scheduled for 3rd April 2023, for our daughter Lanesha Rassool 's medical treatment. 1trip which 1 ultimately did not make. 9. 1 aver that 1 genuinely forgot about this new passport, as 1 had only signed the application form. and had not personally handled or seen the passport. Its existence was therefore not in my immediate recollection. Page4of8 10. That after the mention in Court, my concubine searched our residence for the passport but was initially unable to locate it. 11. I aver that 1 have spoken to my elder sister Elcy Barra, who recalled that I had left a box of old documents at her residence about six months prior. She offered to check if the passport might be in the box. 12.1 aver that shortly afterward my sister called back to inform me that she hadfound the passport within the box of documents. 13. 1 aver that I immediately proceeded to Mont PIaisir, Anse Royale, to retrieve the passport and subsequently surrendered it to the Registrar of the Supreme Court. 14. 1 aver that thefailure to submit the valid passport initially was not intentional, nor was it an attempt to deceive this Honourable Court. 15. That contrary to the Prosecution's allegations, 1 am not a flight risk. 1 have no intentions or plans to travel outside the Republic as 1 neither enjoy air travel nor have I travelled abroad more than Mice in my life, the last being 2003. This is corroborated by the Prosecutions exhibit JM4. [7] In support and in corroboration of the Respondent's/Accused's affidavit, in reply the Respondent's/Accused's sister, one Elcy Barra of Mont Plaisir, Anse Royale, Mahe did swear an affidavit. In her affidavit, inter alia, she depones as follows; "4. 1 aver that on the 7th November 2024, my brother Mike Vital, contacted me by phone following his Court appearance. During our conversation, he informed me that he had been notified by the Court that he possesses a valid passport. Hefurther mentioned that he had mistakenly surrendered an expired passport, and his concubine, Jelina, Esparon, was searching their home for the valid passport. 5. 1 aver that approximately six months ago, my brother had left a box of documents at my residence. This box contained old receipt books and planning documents. I informed my brother that 1 would check the contents of this box to see if his passport was amongst them. 6. Upon examining the contents, I was able to locate and identify the said validpassport. I promptly contacted my brother to inform him that I hadfound his passport. 7. Later the same day, my brother came to my residence at Mont Plaisir, Anse Royale to Page 5 of 8 retrieve thepassport. SUBMISSIONS: [8] In its submissions for the revocation of bail, learned counsel for the Applicant referred this Court to Inspector Malvina's affidavit in support of the application with emphasis on its contention that the Respondent/Accused acted deceitfully by tendering in the registry of the Supreme COUlian invalid passport to fulfill of the conditions of its bail knowingly that such passport was invalid and that he had in its possession a valid one. [9] Learned Counsel also submitted, that by keeping the valid passport in its possession, based on the affidavit evidence ofInspector Malvina, clearly, the Respondent/Accused is a flight risk and is therefore likely to abscond to avoid facing justice for the crime he is to be hied. [10] In its submissions in reply on behalf of the Respondent/Accused, learned counsel stated, that the Respondent/Accused never intended to deceive the Court by delivering at the Registry of the Supreme Court a passport that is invalid. Leamed counsel explained, that the Respondent/Accused genuinely believed, without any knowledge that the passport that he delivered was invalid, that this was the only passport he had in his possession until he spoke to his concubine, one Ielina Esparon, who reminded him that he did apply for a new passport in 2021 to travel on a medical trip to Chennai, India which trip later not materialized. [11] Leamed counsel also submitted, that the Respondent's/Accused's belief is grounded on good reasons, given that in his affidavit he does aver, that he genuinely forgot about the new passport because although he signed the application for a new passport, he had not personally handled or seen the new passport. [12] It was further submitted by learned counsel, that in his effort to try and locate the new passport, if any, the Respondent/Accused did speak to his elder sister, one Elcy Barra, who Page 6 of 8 recalled the Respondent/Accused having left a box containing old documents six months ago, as she undertook to look into the box to see whether the new passport is not amongst these documents. [13] It was the submission oflearned counsel that the Respondent/Accused has not been, and is not a flight risk given that he never had a valid passport in his possession and has had no plan of leaving the country. Learned counsel submitted, that the Respondent/Accused has travelled only twice in his life and the last time he left the country to go abroad was in 2003. It was submitted by learned counsel, that the affidavit evidence tendered before this COUltby the Respondent/Accused is credible, having been corroborated by his elder sister in her affidavit, thus leaving very little room to doubt the truthfulness of his averments. [14] Having carefully perused the affidavit in support of the application and the affidavits opposing the application, I am inclined to believe, that the Respondent! Accused did not intend to deceive the Court by tendering in the registry of the Supreme Court an invalid passport. [15] I believe, that he thought that this was the only passport he had because although he remembers having made an application for a new passport, he never had sight of the new passport, let alone its whereabouts. Furthermore, no evidence has been put before this COUlt to suggest that at the time he deposited the invalid passport in the registry of the Supreme Court, he knew that such passport was invalid, although, it is reasonably expected that he ought to have known the same to be invalid. CONCLUSION: [16] In the final analysis, therefore, it is my considered opinion, that if there is any doubt as to whether the Respondent/Accused is truthful in his deposition, he should, on the balance of probabilities, be given the benefit of the doubt. [17] For this reason, therefore, the application fails and is accordingly dismissed. [18] The Respondent/Accused is reminded that he ought to fully adhere to its bail conditions failing which bail will be revoked. Page 7 of 8 Signed, dated and delivered at Ile du Port 18th November 2024. Page 8 of 8