Dear Editor,
The preliminary inquiry into the brutal murder of Minister Satyadeow Sawh , his family members and a security guard came to a premature end as the accused in the matter, David Leander called ‘Biscuit,’ died under circumstances which are still to be explained. The preliminary inquiry was being conducted by Magistrate Yohannseh Cave at the Sparendaam Magistrate’s Court.
Leander was charged with the offence of murder and as such there had to be a preliminary inquiry in order to ascertain whether there was a prima facie case for Leander to be committed to the High Court for trial by a jury. The procedure simply is that witnesses are called and depositions taken of their evidence. All witnesses are subject to cross-examination by counsel for the accused or by the accused himself, if he is unrepresented.
The preliminary inquiry is in reality a trial and all the rules of evidence apply. No hearsay evidence should be admitted in evidence and any exhibit which is sought to be tendered must satisfy the rules of admissibility. The accused or his legal representative has the right to object to any evidence which the prosecution seeks to tender.
If the prosecution should want to tender in evidence a confession statement which is either oral or in writing, they have to satisfy the court that the statement was free and voluntary. They must lead positive evidence that no force, threats, inducement, coercion and or such act that may sap the free will of the accused was used and or utilized in the obtaining of the confession.
If there is an objection to a confession statement, then the magistrate who is conducting the hearing will commence a voire dire. This is a trial within a trial and after the prosecution has led evidence to show that it was free and voluntary, the defence can make submissions that the prosecution has not discharged the onus of proof. Upon the magistrate finding that a case has been made out, then the accused can give evidence and call witnesses in this voire dire.
After all the evidence for the prosecution and if any for the defence has been led, the prosecutor and counsel for the accused or the accused himself can address the court in order to put forward their respective case. It is only then can the magistrate rule whether to admit the confession in evidence or reject same.
The preliminary inquiry will continue after the voire dire and at the conclusion of the witnesses for the prosecution and if any for the defence, the magistrate will have to determine whether a prima facie case has been made out by the prosecution and if so, then the accused is committed to the High Court for trial. It must be noted that the magistrate does not in a preliminary inquiry decide whether the accused is guilty or not. That is the function of a jury, empanelled to try the accused, to decide whether the accused is guilty or not. The duty of the magistrate in a preliminary enquiry is to see whether there is a prima facie case.
I have outlined the above so one can understand and decide whether the public criticism by the People’s Progressive Party in this matter has any merit. Magistrate Yohannseh Cave had ruled at the end of the voire dire that the confession statement of Leander had not passed the test of being free and voluntary and thus was inadmissible. It would seem that the prosecution had no other cogent evidence against Leander, and with the confession statement being thrown out, the accused would have been ultimately discharged. Alas Leander died and that brought an end to the matter.
However before Leander died the PPP in a public statement stated that the magistrate was wrong not to have admitted the statement in evidence as they were advised by their legal experts that the issue of admissibility is to be determined at the trial in the High Court and not at the preliminary inquiry.
The PPP further stated that at committal proceedings, a confession statement will be tendered into evidence since its actual admissibility, on the basis of voluntariness can only be determined at a voire dire at the trial in the High Court.
The statement also said that the PPP recognized that an independent judiciary was a fundamental pillar of any democracy and that the party would not encourage any attempt to compromise or interfere with the independence of the judiciary. There were other platitudes about the judiciary but the whole thrust of the statement was to criticize the decision of Magistrate Cave in throwing out the alleged confession and implied ulterior motives.
The statement further said that, “in the circumstances, we, therefore view the departure from this legal practice and procedure by the learned magistrate as extraordinary — to say the least.”
I wish to state that the statement that confession statements are accepted in evidence at preliminary inquires and that only at a voire dire in the High Court is the matter of voluntariness determined is completely erroneous.
The practice is that if the only evidence in a preliminary inquiry is a confession statement then if an objection is taken, the magistrate will hold a voire dire and determine whether to admit or reject the statement. If there is other evidence that would establish a prima facie case, then only a formal objection is made to the alleged confession and the voire dire is held in the High Court. However the defence still has the right to have a voire dire at the preliminary inquiry and the magistrate at the end can admit or reject the statement.
I have been in practice for about thirty-nine years and have had and seen alleged confession statements rejected at the preliminary inquiries after the holding of voire dires. As a junior counsel with the legendary JOF Haynes, QC, we had taken objections to confession statements at preliminary inquiries and had success at the conclusion of voire dires of having some confessions rejected. As Chief Magistrate I conducted numerous preliminary inquiries and quite a few voire dires to determine whether to admit or reject a confession statement. I have in these voire dires rejected some alleged confessions as not being free and voluntary, and moreso many oral confessions which I viewed as unsafe in many instances to admit.
I had hesitated to write on this matter as I had hoped that the Chancellor and/or someone else may have corrected the erroneous statement of the PPP on this subject. I did not see any response and in the interests of justice and for the independence of the judiciary, I wish to state that Magistrate Cave acted well within his powers and duties. There should not have been any criticism at all as it was unjustified and without basis. The legal experts that the PPP consulted may have qualified at the Holiday Inn. I am sure that if Mr Bernard De Santos, a PPP parliamentarian and top criminal lawyer, had been consulted he would have vetoed the statement. I think that an apology to Magistrate Yohannseh Cave would be the proper thing for the PPP to do.
The independence of the judiciary is essential for the peaceful development of Guyana.
Yours faithfully,
K.A. Juman-Yassin
