Justice Brassington Reynolds quashed the High Court indictment of two men yesterday, nearly 12 years after they were charged and committed to stand trial over an arms find at Mahaicony, ruling that their committal in the lower court was a nullity.
After more than a decade of waiting for a High Court hearing, businessmen Harrilall Mottilall and Seenarine Persaud were told they were free to go because the magistrate who conducted the preliminary inquiry had no authority in law to conduct concurrent committal proceedings. The men, now greying and visibly changed in appearance, nodded in appreciation and left the court.
Police had arrested the two on February 29, 1996, following the discovery of an arms cache in the walls of a boat owned by Mottilall at Mahaicony. The case had been linked to a shooting incident in the Corentyne River earlier that year. Guyana Defence Force (GDF) Lance Corporal Donald Hartman was shot during a GDF/Berbice Anti-Smuggling Squad operation, but no evidence of this nature materialised in court.
The men faced joint charges of possession of firearms without a licence and possession of ammunition without a licence. It was alleged that they had in their possession two self-loading rifles; two .30 carbines; 120 rounds of .30 ammunition and 189 rounds of .62 ammunition.
When their indictment went before Justice Reynolds on Monday defence counsel Vic Puran, Mischka Puran and Lance Ferreira challenged it on two grounds — procedural defects and the lack of sufficient evidence.
Justice Reynolds ruled on the procedural issue yesterday, declining the invitation by counsel to examine the evidence that stemmed from the proceedings in the lower court.
The judge ruled that the concurrent committal proceedings conducted by the magistrate at the PI phase of the case was not permitted by the statutes and therefore was a nullity and everything that flowed from it was a nullity.
State counsel Fabiola Azore and Judy Latchman appearing for the prosecution observed that the practice of concurrent committal proceedings in Guyana dates back a few years and is in consonance with the practice of English courts. They contended that as recent as last year the practice was allowed in the unreported local High Court case of the State vs Shawn Barrow.
The prosecution also outlined local authorities that examined magistrates conducting concurrent committal proceedings, citing consistency, and expounded that magistrates may very well regulate proceedings to save time, effort and money.
But defence counsel argued that the lower court, in holding concurrent committal proceedings, was in stark contravention of the specific prohibition of the practice as issued in unequivocal decisions by the local Full Court. They said magistrates are creatures of statutes and pointed out that while High Court judges may work out rules of practice on their own, magistrates could not.
Justice Reynolds said the proposal to proceed with concurrent indictable charges must be weighed against the prohibition of the local Full Court. He said Acting Chief Justice Ian Chang, in his capacity as Justice of Appeal, had ruled in 2005 in the case of the State vs Hemchand Persaud that the proceedings before the magistrate were a nullity because the magistrate could not lawfully inquire into two indictable charges at the same time.
The judge questioned whether an unequivocal decision by the Full Court on the practice should be ignored by magistrates. He found that the conduct of the magistrate in this case to hold concurrent committal proceedings was not permitted in written law.
Defence counsel Vic Puran told Stabroek News yesterday that he had filed a motion in the High Court in 1996 after his clients were committed to stand trial but the application was never heard. He withdrew the motion in 2005 and waited for the case to come up in the Demerara Assizes to argue the very points argued in the motion. His main argument was that the committals were bad in law.
Puran said he was hoping the court would have ruled on the lack of evidence in the case, but Justice Reynolds only ruled on aspects of procedural defects. He said the magistrate had admitted into evidence a confession statement for Mottilall without any evidence of voluntariness being led. He said the statement was inadmissible so the Director of Public Prosecutions had nothing on which to indict Mottilall. Further, he said, the only evidence against Persaud was that he was found on the boat. Puran said his mere presence was not sufficient to establish possession and control.
