How to tackle the brief:

1. Read brief & note points at same time

2. Headings
3. Explain each point under each heading include, statute + case law + common sense
4. Conclusion
5. Avoid being monotone
6. Eye contact

Submission:

Enter the court-bow to judges

When submission over ‘may I take your lordship/your ladyship or my lord/my lady?’

Never say I think…it’s I submit

When referring to other party it has to be consistent- say the applicant/respondent all the way

May it please the court, I appear on behalf on the applicant/respondent in the present matter

I shall address the present matter in 2/3 limbs namely, first, second,….

Pertaining to the first limb…..

Moving on to the second limb….

Turning to the second ground of objection…..

May I refer your lordship/your ladyship or my lord/my lady to page ….of the brief

My sincere apologies it is indeed….

As your lordship are already aware the grounds of appeal are at page…

May I take your lordship to page… of the brief

May I refer your lordship to page….of the brief

May I proceed your lordship…

Please bear with me your lordship/your lady I shall deal with same in my submission

Unless I can be of further assistance to the Court, may I take leave?

I have analysed the wording of the information as it stands while bearing in mind the provisions of
(mention section+statute) which reads as follows…… then your deduction

Bail principles

It is the court’s duty when considering whether to grant or deny bail, to weigh the interests of society
against the right of the detainee to his liberty and the prejudice he is likely to suffer if he is detained
in custody.

 Can apply for bail before DC where offence has been committed or the BRC
  S 3 bail act 1999-every person is entitled to be released on bail
 S4 bail act 1999-court can exercise its discretion not to grant bail where there is risk that
accused will fail to appear before Court as and when required, will commit another offence
and interfere with witnesses
 S5(2) constitution-person detained should be as soon as possible the reason for his arrest-
Gordon Gentil v State 1995
 S5(3) constitution-person arrested and not released within a reasonable time should be
released either conditionally or unconditionally
 Noordally v Attorney-General 1996 MR 204- rule is suspect remaining at large and exception
is detention upon reasonable suspicion
 Manraj v ICAC 2003-reasonable suspicion based on facts and evidence-assessed from the
point of view of a dispassionate bystander
 S 10 Constitution- to be informed a soon as possible in a language that he understand the
nature of offence with which he is charged
 S 10(2)(a) Constitution-presumption of innocence
 S 10(2)(e) Constitution- right to cross-examine prosecution’s witnesses
 S 4(2) bail act 1999-consideration for determining bail: period accused has spent in custody
since his arrest, nature/gravity of the offence and nature od penalty to be imposed, nature of
evidence available, character, antecedents, means, community ties, family ties
1. Verbal motion before BRC, if denied then,
2. Fresh bail application before BRC, if denied then,
3. Either review or fresh bail application before SC
 S4(6) bail act 1999- ruling of lower court is not final and is valid for a period of only not
exceeding 21 days
 Breach of Judges’ Rules

Bail review

S 38(1) CA + S 82(1) Constitution

Ex parte Proecipe + affidavit (new facts and circumstances)

Court record of brc/lower court attached

Fresh bail application

Motion + affidavit(containing new facts and circumstances)

Court record not to be annexed-court will exercise discretion on old & new facts

Bail pending appeal

 S 94(3) DIC(CJ)A-person who has been convicted and sentenced, gives notice of appeal
against his conviction before Court which he was convicted, he shall remain in custody
pending determination of his appeal
 S 94(4) DIC(CJ)A-appellant who is not admitted bail pending determination of his appeal is to
be treated as a prisoner awaiting his trial.
For bail review, fresh bail application and bail pending appeal same risks are assessed.

Arguments against granting bail:

Risk of absconding

Deelchand v DPP 2015 SCJ 215: considerations that Court takes when considering bail;

 What is likely to encourage accused to abscond?

 Is the risk too high to be taken?
 Is the level of risks to high to be taken?
 Can conditions be imposed to reduce risks?

In light of the significant quantity and market value of the drugs secured, it was contended that it
is likely that the present case will be tried before the Criminal Division of the Supreme Court
(Assizes)and if found guilty, the Applicant will face a severe penalty. Hence, this gives rise to the risk
of absconding if the Applicant is released on bail

Drug dealing being a lucrative business renders the risk of absconding higher

Hurnam v The State [2004 PRV 53], where the Court opined that-“It is obvious that a person
charged with a serious offence, facing severe penalty if convicted, may well have a powerful
incentive to abscond ... , and this risk will often be particularly great in drug cases.

Risk of re-offending

Applicant's record shows his propensity for committing offences, and if bail is allowed, he may fail to
appear to court and may reoffend

Extract from the case of Deelchand v DPP 2015 SCJ 215-“The sentence expected in case of
conviction is also a relevant consideration because of the greater risk that the offender may think
he has nothing to lose by offending whilst on bail. The extent to which the offences which the
applicant is suspected to have committed are lucrative should also be considered as the
temptation, in case the applicant is guilty, that he may wish to make as much money as
possible whilst on bail, is likely to be greater.”

Interference with witnesses

Deelchand v DPP 2015 SCJ 215:

 Has allegedly threatened witnesses

 The defendant has allegedly made admissions that he intends to do so
 The witnesses have a close relationship with the defendant, for example in cases of
domestic violence or incest
 It is believed that the defendant knows the location of inculpatory documentary
evidence which he may destroy, or has hidden stolen property or the proceeds of
crime;
 It is believed the defendant will intimidate or bribe jurors;
 Other suspects are still at large and may be warned by the defendant.
Serious risk and “satisfactory reasons, and appropriate evidence in connection that show risk of
interference with witnesses:

A)it is believed that the defendant knows the location of inculpatory documentary evidence
which he may destroy, or has hidden stolen property or the proceeds of crime;

B)it is believed the defendant will intimidate or bribe jurors;

C)other suspects are still at large and may be warned by the defendant.

Arguments for granting bail:

Nature of evidence:

Maloupe M.G. v The District Magistrate of Grand Port 200 SCJ 223 for bail at pre-trial stage is
that if conditions may be imposed upon the detainee to reduce the risks to a negligible level, bail is
to be allowed. If the evidence is, by its nature, unreliable, the presumption of innocence should
weigh more heavily in the balance in favour of the applicant’s release on bail.

The Applicant stated from the dock that he will comply with all bail conditions imposed by the court,
and he maintained his innocence

Court should look at the nature of the evidence and not at the precise exact nature of the evidence.
It is therefore understood that the court should not make a detailed analysis or evaluation of
the evidence before it.

Labonne JV v Director of Public Prosecutions & Anor 2005 SCJ 38, the court must not examine the
evidence in a time-consuming and detailed manner whilst assessing the quality of evidence.

Risk of absconding

With regards to the risk of absconding, whilst I can appreciate the apprehensions of the Respondent
considering the nature of the offence and the significant value of the drugs secured, I note that
there is no evidence on record to substantiate such a risk. The gravity of the charge and the
likelihood that the Accused may face a severe penalty if convicted does not, in itself, render the
risk of absconding one which is plausible.

Applicant was at large for two months since the date of the alleged offence and prior to his
arrest. There is no evidence on record that the Applicant has attempted to abscond during that
period. In fact, in accordance with the testimony of the enquiring officer, the Applicant’s conduct
over the past two months is such that he has participated in the investigation, and he has made
himself available for the purpose thereof

This ground of objection rests on mere apprehensions

He fact that the accused may face a severe penalty are not reasons which can be solely relied upon
to refuse bail

In Deelchand v The Director of Public Prosecutions & Ors [2005 SCJ 215],the Supreme Court noted
that whilst bearing in mind the severity of the sentence, this risk had to be evaluated by also
taking into consideration other factors including the detainee’s criminal record, his family,
community, professional or occupational ties and financial commitments

The risk that the applicant may abscond was not well founded when considering the fact that the
applicant has strong family ties and a fixed place of abode.

Here is no evidence of applicant having tried to abscond or breached a bail condition

I am of the view that the risk of absconding though plausible, can be minimized to an acceptable
level with stringent conditions being imposed.

Having considered that the Applicant has a fixed place of abode, has strong family ties, is in
gainful employment, is of clean record and not on bail, I take the view that these factors
minimise and mitigate any temptation on the part of the Applicant to attempt to evade trial if he is
released on bail

Risk of re-offending

Clean record

No cognate offences

Has breach any bail conditions

Interference with witnesses

Deelchand v DPP 2005 SCJ 215: “To satisfy the court that there is a serious risk of interference
with a witness, satisfactory reasons, and appropriate evidence in connection thereof where
appropriate, should be given to establish the probability of interference with that witness by
the applicant.”

To successfully substantiate this ground of objection, must satisfy the court that there is a
serious risk of interference with witnesses on the basis of satisfactory reasons and/or
appropriate evidence. There is no evidence on record that the Applicant has threatened or
influenced witnesses, attempted to, or made admissions that he intended to do so

I am of the view that this ground of objection stems from a mere apprehension and the
Respondent has not been able to establish, on the basis of satisfactory reasons and
appropriate evidence, that there exists a serious risk of interference if the Applicant is released
on bail.

Satisfactory reasons to believe that accused will not interfere with witnesses or tamper with
evidence, bail should be granted.

Additional points:

Weight of the drugs and its value was determined by the ADSU, in absence of a purity test being
carried out on them by Forensic Laboratory
I believe that the ADSU being in their field of expertise, are qualified and competent to carry out an
evaluation process of the said drugs.(expert evidence-competency)