The Guyana Court of Appeal (CoA) yesterday dismissed an appeal by Anil Nandlall in the ‘law reports case’, having found that acting Chief Justice Roxane George SC, was justified in refusing to interfere with the decision by Magistrate Fabayo Azore on November 23rd 2018 to overrule a no-case submission made on his behalf.
This decision clears the way for Nandlall’s trial to continue in the magistrates’ court, although it may be some time before it does, as Nandlall yesterday signalled his intention to appeal the decision to the Caribbean Court of Justice.
Nandlall was charged regarding his possession of $2 million in law reports, and a trial before the magistrate’s court ensued. After the State had closed its case, Nandlall’s attorneys-at-law had submitted that there was no case to answer. Magistrate Azore, however, finding that a prima facie case was made out, overruled the submission, and called on Nandlall to lead his defence.
Nandlall then applied for judicial review of Magistrate Azore’s decision on the basis that she was wrong to find that a prima facie case existed, given that the charge against him, “Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01” is allegedly not known to the Laws of Guyana, and that her decision to call on him to lead his defence in those circumstances thus violated his rights guaranteed by Articles 40, 144(4) and 149(d) of the Constitution of Guyana.
In giving her decision, however, Justice George found that while the court was vested with jurisdiction to intervene at the stage of a no-case submission in a summary trial, the jurisdiction should only be exercised in “limited and extreme circumstances”, which circumstances she said did not exist in Nandlall’s case.
Grounds of appeal
In the notice of appeal, counsel for Nandlall, argued that the Chief Justice violated Nandlall’s right to be heard by determining the merits of the judicial review application on the basis of his affidavit as opposed to availing him a proper opportunity to be heard, through submissions for example. Further, it was argued that the Chief Justice could not have lawfully determined that the magistrate’s decision was properly made as she did not have the benefit of the record of the proceedings in the magistrate’s court.
The Chief Justice, however, had said that in his affidavit, Nandlall had not established what constitutional breach he was exposed to, and that there was no need for the records of proceedings in the Magistrate’s Court to be produced in the High Court for that reason.
The CoA’s decision
In delivering the CoA’s decision yesterday, Chancellor Yonette Cummings-Edwards said the question before the magistrate’s court was whether a prima facie case had been made out by the State. Continuing, she explained that a judicial review is available in the event of unlawfulness in making the decision, while an appeal would consider whether, on the merits of the case, the decision is wrong or right.
In the circumstances, the Chancellor noted that the magistrate’s decision to overrule the submission of no case to answer, and call on Nandlall’s counsel to lead his defence was not unlawful as she is permitted by law to do so, and it is part of the trial process.
Agreeing with the High Court on the limited scope for interfering in a magistrate’s court trial at the stage of a submission of no case to answer, the Chancellor noted that there is case law which cautions against a superior court interfering to stop the process of a magistrate’s court at that stage. The CoA also concluded that such interference is only justifiable in exceptional circumstances, which circumstances she said did not present themselves in Nandlall’s case.
The Chancellor also said that although the Judicial Review Act stipulates that judicial review ought not to be denied by a court where other remedies are available or have not been exhausted, an applicant may not bring such an application whenever he desires it. Applications must, she explained, conform with the rules which govern this area of law.
The Chancellor also said that the trial in the magistrate’s court should not have been interrupted by the application for judicial review, especially where the magistrate had not completed the trial. She also said that it was premature for issues not fully determined in the magistrate’s court to be ventilated in the High Court, or for judicial review to be used to bring up the decision of the learned magistrate.
Nandlall was represented by Douglas Mendes, SC, of Trinidad and Tobago while the Solicitor General, Nigel Hawke, of the Attorney General’s Chambers, and Leslyn Noble, of the Special Organised Crime Unit (SOCU) represented Superintendent Trevor Reid, who is attached to SOCU.
