Magistrate describes case as ‘water fetched in basket’
The charges against the defendants in the $6M Buddy’s fuel bust were dismissed at the Providence Magistrate’s Court yesterday, ending more than two years of deliberations.
In dismissing the charges, Magistrate Priya Sewnarine-Beharry compared the case presented by the prosecution as “water fetched in a basket” and said that it was replete with errors. The matter had been prosecuted by special prosecutor appointed by the Guyana Energy Agency (GEA), Anil Nandlall.
On trial were Deonarine Singh of 104 Collingswood, Nandy Park, EBD; Wazir Mohamed of 28 North Road, Bourda; Clement Huntley of 39 Wisroc, Linden; Fitzgerald London of 494 Canvas City, Linden; Sanicharran Ramgolam of Number 64 Village, Corentyne; Ceezann Vandelwin of the Pomeroon River; Errol Prince of 43 Garnett Street, Kitty; Joseph Allen of Diamond Squatting Area, EBD; Ramsahai Basdeo of Lot 101 Cornelia New Housing Scheme and Osbern Richards of Supenaam, Essequibo Coast.
They had been jointly charged with possession of fuel at Buddy’s farm at Coverden without the relevant marking in the right proportion and possession of illegal fuel in a quantity exceeding 2,000 litres without a licence.
The trial of the ten accused and the trial of businessman Omprakash `Buddy’ Shivraj, on whose property the alleged illegal fuel was found, were merged. Shivraj was charged with possession of illegal fuel and storage of illegal fuel and had been placed on just under $1.1M bail. The defendants were represented by attorney-at-law Vic Puran and Glen Hanoman.
When the matter was called at court yesterday, Nandlall was not in attendance and the court was informed that he was in the High Court. He turned up shortly after.
In handing down her decision Magistrate Sewnarine-Beharry noted that several issues had been raised by the defence and prosecution and proceeded to address these. On the admissibility of a confession statement, she said that that the court cannot be satisfied that the alleged confession was voluntarily given and noted the evidence of now dismissed head of the GEA Joseph O’Lall.
On the question of identification, again citing the evidence of O’Lall she said that that there was no nexus between the Number one and two defendants and the other defendants.
She pointed to the evidence of O’Lall, who had testified that when he arrived there were no electrical lights in the compound and the persons had scattered. She said that if the confession statement was taken away only two persons were identified: Ramgolam, whose clothing was covered in fuel and Shivraj, who gave a statement.
Gateman
The magistrate declared that the prosecution failed to appreciate the fact that they bear the burden of proof and noted that no evidence of the physical characteristics of the defendants was led. She noted that the defendants were not the only persons at the scene and pointed to the fact that the gateman was not charged.
She further noted it was for the prosecution to prove that the defendants had physical control of the items mentioned or had knowledge about it but no evidence was led that suggests that the defendants had any control or knowledge of the fuel.
She stated that from the evidence on the night of the 27 September, 2005), it was not possible to test fuel on the Ashley S and as regards the discharging of the firearm when it was stated that persons scattered, she said that there were multiple inferences that could be drawn and this included that they were guilty or “in these times they thought there were bandits and they began to run”. She noted that the gateman and boatman were not charged as well as people living there.
As regards, storage, the magistrate asked the meaning of the word ‘stored’. She said that given the drums and other apparatus, there was a presumption that something was stored but asserted that there was “no evidence that the defendant Shivraj stored anything”. She said that the prosecution relied on the fact of ownership and the court was left to draw two conclusions, one of which was Shivraj was not in control by virtue of tenancy.
Meanwhile, noting the defence’s arguments that the charges were bad in law (they had argued that the GEA was not empowered or authorized to determine the proportion of marker in the fuel as was stated in the charge), the Magistrate pointed out that the GEA was not empowered to determine the required proportion of marker and this power resided with the Prime Minister.
She noted that the prosecution had asked for an amendment to be made and stated that even though the court has wide powers of amendment and the amendment appears to be permissible, the court could not entertain them as they were not precise.
She said that the charges were clearly defective and the amendments ought to have been clearly set out. “It is the duty of the prosecutor to make the application for the amendment to be precise and coherent but he chose not to do so”, she stated, adding that as such the court could not entertain them.
Magistrate Sewnarine-Beharry declared that that on a range of technical issues the prosecution failed and compared the case “like water fetched in a basket”. She then dismissed the charges and told the defendants that they could leave.
Hanoman, on behalf of his clients said that they were “most thankful” for the decision while Nandlall congratulated the magistrate for the “detailed judgment rendered”.
Saga
The dismissal of the charges ends the saga of what is said to be one of the largest fuel busts locally. On the night of September 27, 2005, the GEA said that acting on information received officials visited Buddy’s Farm at Coverden, East Bank Demerara around 10 pm on that day.
When they arrived, the ten defendants were seen offloading fuel from a trawler named Ashley S into drums. A fuel tanker it is alleged was already filled.
Tests were carried out on the said fuel and it was found to be illegal. The men were subsequently arrested and charged. Over 43,000 litres of diesel valued at $6M was seized.
At that stage they had found the Ashley S, registered to Coastline Towing, three tanker trucks, two pick-ups and two pumps. But hours later, the boat and the three tankers disappeared.
The disappearance of the trucks and boat sparked a furore and led to Prime Minister Sam Hinds summoning a press conference and promising an exhaustive investigation. The boat was later found not far from Coverden. Its load of fuel had been emptied and its registration mark painted over. Two persons were found on the boat and taken into custody.
The GEA then fired retired Army Major, Hubert Meusa who had headed the fuel-marking programme. He had allegedly abdicated his responsibilities and this led to the unlawful removal of the evidence.
He was charged with obstruction of justice and it was alleged that on September 29 at Coverden, Meusa conspired with other persons unknown, to obstruct the course of justice by failing to protect property at the centre of a prosecution for which he was assigned protective duties. It was alleged that Meusa and other officers were left to guard the trawler and three tankers at the Coverden Farm yard where the first set of fuel was found on September 27.
Two officers were called away to Georgetown leaving Meusa alone on the site. Meusa later left the farm complex unattended and upon his return found that the trawler and the tanker trucks were missing. Meusa was later arrested and charged with the offence. The court on December 2005 threw out the case for want of prosecution.
However, since the trial of the 11 defendants began it has been hit by delays for various reasons. In April 2006, the trial was postponed after one of the accused: Deonarine Singh filed a notice in the High Court asking for the case to be dismissed, the seized boat Ashley S to be released and the magistrate to cease proceeding with the trial.
Several months later the High Court motion was dismissed and the magistrate was to begin hearing evidence in the case.
But soon after the conclusion of that action, another was filed which took another few months to be concluded and after that the trial began at the Magistrate’s Court but absences by both the prosecution and the defence have forced postponements also.
Late last year O’Lall was sacked over violating the rules governing PetroCaribe funds. Shortly before his firing he had been placed on administrative leave in November 2007 over bungled fuel arrangements for the Guyana Power and Light (GPL). O’Lall had previously lamented that no convictions had been garnered in court for illegal fuel charges.
On closing the prosecution’s case in July last year, Nandlall had tendered an affidavit that was filed in the High Court in which Deonarine Singh admitted ownership of the vessel on which the fuel was found.
