A High Court judge on Friday overturned a magistrate’s decision to grant bail to two Brazilian men who were charged with drug trafficking after over 1100 pounds of cocaine were found when their plane crash-landed at Orealla in May last year.
The Attorney General’s Chambers yesterday called Justice Sandil Kissoon’s ruling “historic,” while noting that he found no basis in the circumstances to justify Magistrate Alex Moore’s decision, which was described as perverse.
As a result, the Attorney General’s Chambers said that after considering detailed submissions from both the Attorney General and attorneys for the accused men, Salem Nobrega De Alencar and Andre Luiz Pereira, the Court granted orders quashing the decision granted bail to the men on charges of possession of 1178.95 pounds of cocaine for the purpose of trafficking and arriving in Guyana by air and not at a port of entry.
On May 20, 2021, police discovered the cocaine after the foreign-registered aircraft, a four-seater Bonanza Beechcraft, crashed-landed in the Orealla savannah just before 2pm. The two men were immediately arrested after the discovery was made.
They had told residents of the riverine community that they were visiting the area for leisure but started to experience some mechanical issues in the air causing their fuel to run out and forcing them to crash-land in the area. But residents became suspicious and immediately contacted the local ranks stationed in the area, who questioned the men and conducted a search of the aircraft during which the cocaine was discovered.
While the men had initially been remanded to prison, Magistrate Moore on July 22 granted them their release on $3 million bail each on the trafficking charge and $50,000 each on the illegal entry charge.
However, the men were not released as the Attorney General Anil Nandlall filed Fixed Date Applications on behalf of the police for judicial review of the decisions in respect of both men and sought orders to quash the granting of bail to them. A stay of the magistrate’s decision was granted pending the outcome of the review.
The police contended that Magistrate Moore’s decision to grant bail was unreasonable, an abuse of power, and an improper exercise of his discretion. They argued, too, that the Magistrate acted “in bad faith and/or for an improper purpose and/or took into account irrelevant considerations.”
In a statement, the Attorney General’s Chambers yesterday said the judge determined that the High Court had supervisory jurisdiction to review decisions over the magistracy in both civil and criminal proceedings, subject to settled exceptions. It also noted that the judge held that Magistrate Moore’s decision to not respond to the proceedings filed against his decision to grant bail did not prevent the Court from judicially reviewing the decision.
According to the Attorney General’s Chambers, the judge found that the conditions for granting bail under section 94 of the Narcotics Act were not satisfied given that Magistrate Moore took into account factors relating to the offender and not the offence as it required by the section. Section 94 prohibits the grant of bail in such cases unless there are special reasons for doing so which must relate to the offence and not the offender.
“The Honourable Justice Kissoon found that there was no basis, fact or circumstances existing or apparent nor any principle of law or consideration relevant or applicable in the circumstances of the matter to warrant or justify the decision of Magistrate Moore…
“The learned Judge held that the said decision was plainly not only irrational but perverse. Justice Kissoon further held that the learned Magistrate committed grave errors in the interpretation and application of Section 94 and what constituted special reasons which went to the Magistrate’s jurisdiction and as such, without more makes his decision liable to be quashed,” it added, while also noting that the judge concluded that the Magistrate’s decision was not a judicial one.
The two Brazilians nationals had initiated Habeas Corpus proceedings to secure their release after the magistrate granted bail but their application was denied by Justice Kissoon after the Attorney General asked that the police’s case seeking judicial review of the Magistrate’s decision to grant bail be first determined.
The police also contended that the two defendants pose a real/serious risk of flight.
