The Guyana Court of Appeal has commenced hearing the state’s reasons for appealing the dismissal of a case against Salill Budhoo, for allegedly causing the death of 76-year-old Ramdularie Singh, by dangerous driving, back in 2013.
In her petition that the appeal be allowed, State Counsel Natasha Backer, said that Magistrate Alex Moore, who presided over the case, dismissed the case “for want of prosecution,” without hearing its witnesses.
Appearing before acting Chancellor Yonette Cummings-Edwards and Justices of Appeal, Rishi Persaud and Dawn Gregory on October 23, Backer said Magistrate Moore dismissed the case “for want of prosecution,” citing inordinate delays by the prosecution.
Counsel said that Budhoo was arraigned before Moore at the Sparendaam Magistrate’s Court on September 18, 2012—two days after the fatal crash.
According to Backer, the magistrate contended that the prosecution repeatedly failed to present a case for the defendant to answer, and informed, that the case would therefore be struck out.
Acknowledging that the prosecution had been granted several adjournments to produce witnesses, Backer took issue with the fact that at the material time Magistrate Moore threw out the case, the prosecution had witnesses to testify.
She said when the case was dismissed on June 20, 2013, four of the prosecution’s nine witnesses were present and ready to testify, but Magistrate Moore refused to take their evidence, citing that they were “peripheral” witnesses, and wanted to hear from the two main witnesses in the case, instead.
Forming the basis for their appeal, the state counsel vehemently argued that the magistrate should have taken the evidence of the available witnesses, albeit peripheral and not what he, at the time thought should be testimonies from the two main witnesses.
She contended that the prosecution presented its witnesses to testify according to law, and found the magistrate’s decision to dismiss the case, as being “erroneous and egregious.”
According to the lawyer representing Budhoo, however, the magistrate was only using his discretion for which the law allows, when he dismissed the case for want of prosecution because of inordinate delays, facilitated by one adjournment after other.
Asked whether he thought the magistrate was right to throw out the case, even though witnesses were present to testify, the lawyer told the Chancellor he was, but could produce no authority to back his position.
After attempting unsuccessfully to argue this position for some time, the lawyer eventually concurred with the judges that there are no established legal principles to substantiate his contention
Backer, however, strongly expressed the belief that if the prosecution witnesses were allowed to testify, a prima facie case showing sufficiency of evidence would have succeeded.
She argued that Magistrate Moore exceeded his jurisdiction as stated under section 9(b) of the Summary Jurisdiction (Appeals) Act Cap 3:04, by acting contrary to, and in excess of his dismissal powers in accordance with section 28(4) of the Summary Jurisdiction (Procedure) Act Cap 10:02, by failing to hear and take all the evidence before him.
The magistrate’s decision, she averred, was unreasonable, emphasising that it could not be supported.
Backer explained that Moore directly contravened the provisions of the Summary Jurisdiction (Appeals) Act, in finding that the witnesses present were merely peripheral, whose testimony did not make a prima facie case against Budhoo.
More importantly she said, witness, Ravindra Singh, a passenger in Budhoo’s car, at the time of the accident, was present among the four, to testify for the prosecution, but was not allowed.
According to her, this witness’ evidence is strong and compelling for the prosecution’s case and would have provided the court with the circumstances under which the accident occurred, had he been allowed to testify.
“This evidence would have supported the prosecution’s case against the defendant, and when taken together with the evidence of the other witnesses, present was capable of establishing a prima facie case against the defendant,” Backer submitted.
Backer wants the court to allow the state’s appeal against Budhoo.
The matter comes up for hearing again this morning at the Court of Appeal.
The charge levelled against Budhoo, was that on September 16, 2012 on the Montrose Public Road, he drove minibus number BNN 7851 in a manner dangerous to the public, thereby causing Singh’s death.
He had pleaded not guilty to the indictment.
At the time of the horrific smash-up shortly after midnight at the intersection of Atlantic Ville and Vryheids Lust on the East Coast of Demerara Public Road, Singh was returning to her Berbice home, after seeing her daughter board a New York-bound flight.
Investigations into the three-vehicle smash up, revealed that the driver of minibus BNN 7851 attempted to overtake motor lorry GNN 5130 and collided with motor car PMM 1123 which was proceeding in the opposite direction.
Following the collision, the motor lorry ran into the rear of the mini-bus, the release said.
While a number of other persons were injured in the accident, only Singh died.
