Dear Editor,
I refer to the letter of the Honourable Director of Public Prosecutions (Ag) captioned “Justice Jainarayan Singh had no jurisdiction to determine the validity of the provisional arrest warrant” (08.01.22) set out in the letter pages of the Chronicle of Monday January 21, 2008. It was my intention to defer to the Guyana Bar Association and those who took silk, hence my delay in replying.
Every contenation of law stated in her letter is unlearned, misconceived and wrong.
Let us look at the issues and contentions of law raised therein.
(i) The headline and tenor of the letter is that the Judge had no Jurisdiction. The Honourable Attorney General, in person, appeared for the State in all three of the Dataram applications. The issue of want of jurisdiction was never raised in any of the applications. Surely, if such a point existed it would have been canvassed by the Honourable Attorney General.
Lord Atkin in the leading case of Liversidge v Anderson (1941) 3 All ER, 338, held,
“……… every imprisonment is prima facie unlawful, and that it is for a person directing imprisonment to justify his act”.
Further, once individual liberty is invaded, the aggrieved party is entitled to appeal to the judicial power by Habeas Corpus.
See: Motilal v State of Bihar AIR (1968) SC 1509.
Even if the character of the detenu is not meritorious he is entitled to the protection of the Court : See VG Ramachandran’s Law of Writs 5th ed pp 610-611.
The liberty of the detained person can only be infringed if there is a valid provisional warrant, detaining him for an extradition crime See: Diamond v Minter (1941) 1 KB 656
In R v Secretary of State of Home Affairs Ex P O’Brien (1923) 2KB 361Scrutton LJ held,
“……the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will probably send him to prison.”
It is like mathematics, Dataram was deprived of his liberty. Therefore on an application for Habeas Corpus to free him, the Court was obliged to examine whether the cause of his detention was lawful. Not only did the Court have jurisdiction, but also, it had a duty to protect the detenu and examine the lawfulness of the detention i.e. examine the validity of the provisional warrant. See: A.D.M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521.
(ii) The second issue is that the Honourable Judge went outside of his jurisdiction and decided on the legality of Honourable Justice Cummings-Edwards’ Order. The starting point of an informed discussion on this issue is the learning in the Guyana Court of Appeal Case of Elsie Persaud v Charles Ogle (1979) 27 WIR p. 160.
Even though this authority was the thrust of my attack in Dataram No. 1, the Honourable Director of Public Prosecutions (Ag) still seems not to have grasped the learning therein. As a matter of fact, the Honourable DPP (Ag) only came to Court twice in the course of Dataram No.l, Dataram No. 2 and Dataram No. 3. She was never present for most of the arguments and missed all the rulings. The opportunity to learn was lost and consequently she repeated the mistakes made in Dataram No. 2 in Dataram No. 3.
The application before the Honourable Justice Cummings-Edwards was made ex-parte, that is, without Dataram who was in custody, being given an opportunity to be heard in what was a final order, depriving a citizen of his liberty. The application of logic, not even law, would show that this was wrong.
In any event, Dataram No. 1 was filed and heard before the Application which was dealt with by the Honourable Justice Cummings-Edwards.
In Persaud v Ogle, the Court of Appeal of Guyana comprising of Crane C, Massiah JA and Viera JA held at pp 168-169:
“So the lesson to be learnt is clearly this; it behoves any Judge before whom an ex-parte order is sought to proceed very cautiously indeed; particularly as his order is being made in the defendant’s absence. He should, as far as possible, endeavour thoroughly to acquaint himself with all past proceedings, pending proceedings and the history of the cause so as to avoid the possibility of his making an order that will conflict with any previous judgment or order of another Court of co-ordinate or superior jurisdiction on the same subject matter. He can only avoid error by inspecting and thoroughly acquainting himself with all relevant records of Court before making his ex-parte order. Any judgment or order whether deliberately given or given in ignorance or forgetfulness of the existence of a prior judgment or order on the same subject matter by a Court of co-ordinate jurisdiction will be void; it will be no order at all; it will be a nullity”.
On this issue alone, the Order of the Honourable Justice Cummings-Edwards was a nullity. And what did Chancellor Crane say about a nullity? At p. 168 the Honourable Chancellor held,
” … no Court is ever bound by a decision that is a nullity”.
In Macfoy v United Africa Co. Ltd (12) (1961) 3 All ER 169 at pp. 172-173, Lord Denning held,
” There is no need for an order of the Court to set it aside. It is automatically null and void without more ado”.
After Dataram was released on 13th December 2007. He was arrested in contempt of the Court’s Order. The DPP may wish to explain, if it is within her knowledge, upon what basis was Dataram re-arrested on the 13th December 2007 after he was released by the Honourable Mr Justice Jainarayan Singh. This arrest was a clear violation of the law. Mr Seelall Persaud, the Crime Chief of Guyana, under cross examination in Dataram No. 3, said that he was informed, but cannot recall by whom, that Dataram was re-arrested on 13th December 2007 on the basis of a provisional warrant. But the first provisional warrant was issued on 14th December 2007 and, therefore, could not have been an operating cause on 13 December 2007. I know that Dataram was not re-arrested on the instruction of the Commissioner of Police (Ag). I have been reliably informed as to who issued the instruction, but my informant would not testify, so I cannot prove the identity of the woman who issued the instruction.
(iii) The third issue raised by the Honourable DPP (Ag) is that she was made a party to the proceedings in Dataram No. 2. I wish to encourage the Honourable DPP (Ag) to read and understand the law as it relates to necessary parties and proper parties.
(iv) The fourth contention is that the validity of the provisional warrant could not have been decided upon in a Habeas Corpus Application. This contention was advanced by the Honourable Attorney General in Dataram No.2 but was abandoned by the Honourable Attorney General in Dataram No. 3 because by then it had become clear that the contention was without merit.
It would do the DPP (Ag) well to read and understand the judgment of Lord Diplock in the House of Lords decision of Government of the Federal Republic of Germany v Sotiriadis and another (1974) 1 All ER p. 692 and Diamond v Minter (1941) 1 KB 656.
In support of this contention the Honourable DPP (Ag) advanced as a fact that, ” The Attorney General who appeared for the DPP and Commissioner of Police submitted arguments that the purpose of a provisional arrest warrant is to determine whether the person was being lawfully detained.” The Honourable Attorney General advanced no such proposition and he is incapable of such unlearning.
The purpose of a provisional warrant is to enable the arrest of a person in relation to an extradition crime.
Bharose v Courtheyn 25 WIR p.260, cited by the Honourable DPP (Ag), was correctly ignored by the Court. In Bharose v Courtheyn, Massiah J.A, as he then was, held that Habeas Corpus does not lie against a parent who has legal custody of his child, for a parent in that position cannot be said to be unlawfully detaining the child.
In Bharose v Courtheyn the detention was lawful and therefore Habeas Corpus did not lie. In Dataram’s case the pr
ovisional warrants were attacked and established to be unlawful and therefore the detentions were unlawful, so the Court had no alternative but to order Dataram’s release.
(v) The Honourable DPP also advances that the Judge was bound by a presumption of regularity. She advanced,
“There was a provisional arrest warrant and according to the principle of presumption of regularity, the judge ought to have found that Barry Dataram was lawfully in custody.”
The Honourable DPP (Ag) must have been absent on the day when Mr. Cenac taught at Law School that this presumption was rebuttable. And indeed it was rebutted in Dataram No. 2 and Dataram No. 3. This principle of presumption of regularity referred to by the Honourable DPP (Ag) is known to lawyers as the maxim omnia praesumuntur rite esse acta. This is what Cross and Tapper on Evidence 9th edition at pp 32-33 says about this maxim,
” The maxim omnia praesumuntur rite esse acta must, however, be used with care in criminal cases. It cannot be relied upon to prove the existence of facts central to an offence. Nor should it be relied upon to presume a fact contrary to the liberty of the subject, such that a prisoner is being held in lawful custody”.
It is surprising that Ms. Shalimar Ali -Hack is unaware of this basic principle of law.
(vi) On the question of evidence, the Honourable DPP (Ag) cited Section 13 (2) of the Fugitive Offenders Act 1988 and argues that in an application for a warrant, evidence is not tendered.
Up to now she has failed to recognize that the application is made under S 13(2) but the test which the magistrate has to apply is set out in s. 13 (3) which states,
“A warrant for the arrest of any person under subsection (1) or (2), may be issued upon such evidence…”(emphasis mine).
The Honourable DPP (Ag) would do well to read and understand R v Governor of Pentonville Prison, ex parte Osman, (No. 3) (1990) 1 WLR 878 in which the court cited with approval a passage from Rv Weil (1882) 9 QBD 701 that,
“There must be some evidence, but very little will do, for it is merely for the purpose of detaining the man”.
The Honourable DPP (ag) then stated that the information upon oath when sworn to before the magistrate becomes the evidence. There is no rule of law that metamorphoses hearsay into evidence because the hearsay is, by error of the court, stated in the witness box. Hearsay can never cross the threshold of admissibility unless it comes under one of the exceptions of the hearsay rule.
In both Dataram No. 2 and Dataram No.3 the US indictments and warrants were not exhibited in the information and never became exhibits of the court and therefore were never part of the evidence. See: R v Williams (1979) 30 WIR 237.
The Honourable DPP (Ag) then speaks of a practice that in the past, provisional warrants were issued in the manner in which the instant warrants were issued. This practice only existed, if it did, because of lack of vigilance of defence counsel hitherto.
(vii) The seventh issue raised is the procedural barrier to get a judicial pronouncement on the merits of the Judge’s ruling. The DPP (Ag) boasts that the decision of Justice Jainarayan Singh cannot withstand an appeal by the State. I challenge her to file a DPP’s Reference or a Motion seeking a declaration on the various issues. Is it that she is unaware that this can be done?
In her penultimate paragraph the Honourable DPP (Ag) expressed certain regrets. I regret that the DPP (Ag) is of the mistaken view that Justice Jainarayan Singh’s interpretation of the Fugitive Offenders Act makes nonsense of the law. The Honourable Judge in both Dataram No. 2 and No. 3 gave guidelines as to how applications for the warrant should be made.
But the DPP (Ag) was absent on both occasions. Had she been present in Dataram No. 2 the errors would not have been repeated, I hope, in Dataram No. 3.
But what incensed the Honourable DPP (Ag) was the Honourable Judge’s remark that, ” To say the least this was slipshod and incompetent work on the part of the DPP which rendered the information ineffective”.
This comment was in relation to the information upon oath being intituled Fugitive Offenders Act 1998. The Act is really one of 1988. The Judge said, ” It was clearly a typographical error which was never corrected. I have no evidence that that mistake was ever corrected”.
Indeed this error had arisen as early as Dataram No. 2, but tactically I did not take the point then because I contemplated Dataram No. 3. There were many other errors which I did not bring to the fore.
In her last paragraph the Honourable DPP (Ag) writes of the Honourable Judge abusing the Court’s process. In this regard, the Honourable DPP (Ag) should read and understand Connelly v DPP (1964) 2 All ER p. 41 and R v Derby Crown Court, Ex Parte Brooks (1985) Crim LR. 754. The concept of a judge abusing the court’s process is unknown to law.
In passing, may 1 mention that it was this same Honourable DPP (Ag) who advised Magistrate Octive Hamilton that the fugitive Sugrim could not lead a defence in the extradition proceedings.
The United States Government must recognize where the incompetence lies and ought not to be diverted by a smoke screen.
In Dataram No. 2, I suggested that the Chambers of the DPP should take advice from the Attorney General so as to avoid embarrassment to the State of Guyana.
That fact that Shalimar Ali Hack holds constitutional office and is hopelessly wrong on every point of law she advanced, and continues to maintain, is of no moment. It is an indictment upon those who keep her there.
Yours faithfully,
Mr. V. V. Puran
Attorney-at-Law
