After Senior Magistrate Leron Daly temporarily remanded Police Legal Advisor Mandel Moore over his failure to submit promised evidence in the cybercrime proceedings against Detective Sergeant Dion Bascom, the Director of Public Prosecutions (DPP) has written to the Chancellor of the Judiciary seeking to have the trial reassigned.
Moore, who is prosecuting the case for the Guyana Police Force (GPF), spent a few minutes in the holding area for prisoners on Wednesday after he was initially remanded by Magistrate Daly for failing on several occasions to present a video as he had been requested to do.
He was thereafter granted a reprieve and given until 11:00 hrs yesterday to turn over the video.
However, when the matter was called for hearing yesterday morning, he did not present the video. Instead, a letter from the DPP, Shalimar Ali-Hack, which was addressed to acting Chancellor of the Judiciary Justice Yonette Cummings-Edwards, was presented to the court.
In the letter, which was seen by Stabroek News, the DPP said while she notes that Magistrate Daly does not seem to have a personal interest in the matter, the case should be reassigned to another magistrate.
“…I respectfully invited Your Honour to consider exercising the power invested in Your Honour by section 12 of the Summary Jurisdiction (Magistrates) Act, Chapter 3:05 to assign the matter to another magistrate to adjudicate on the matter,” Ali-Hack states in the letter, dated September 28, 2022.
Section 12 states: “The Chancellor may direct that a particular magistrate shall not adjudicate on a particular cause or matter coming before him because of the magistrate’s personal interest in that cause or matter or for any other sufficient reason and shall in any such case assign another magistrate to adjudicate on that cause or matter.”
In her letter, Ali-Hack states, “I recognise that the magistrate does not appear to have a personal interest in the matter, however, the conduct of the magistrate thus far, in my respectful view, constitutes sufficient reason for the exercise of Your Honour’s statutory power. Should the magistrate continue to adjudicate in this matter, there is every likelihood that the case will not be afforded a fair hearing. This may not only be a miscarriage of justice but will inevitably lead to legal proceedings in the High Court.”
During a disclosure hearing before the magistrate on Wednesday, Bascom and his attorney, Nigel Hughes, were expecting the video of a GPF press conference with statements made about Bascom by acting Commissioner Clifton Hicken and Crime Chief Wendell Blanhum to be handed over.
Magistrate Daly had requested that the video be disclosed to the court on several occasions and was promised by Moore that it would be. However, when he could not produce the video to the court when the matter was recalled the magistrate made the decision to have him taken into custody and he was later escorted to prisoners’ holding area.
However, moments after, Magistrate Daly summoned Moore to the court, where she asked him once more to present the video.
Moore said that he would be in possession of the video yesterday and the magistrate ordered that he do so at 11:00 hrs. He gave an undertaking to do so and was then released.
Misconstrued
Describing the development as a “most frightening” assault on the rule of law, Hughes yesterday argued that the Chancellor does not have the power to ask any magistrate to rescue herself from an ongoing matter.
“…The letter is address-ed to the Chancellor of the Judiciary….The Chancellor of the Judiciary in a pending [matter], before a sitting magistrate, has no jurisdiction to invite you to recuse yourself,” Hughes said.
“If the Chancellor wants to consider that application, she would have to recuse herself in the event that there is any appeal of any proceedings that concerns this matter. Secondly, the Chancellor does not have any jurisdiction to make any announcement or give any direction in a pending criminal matter being heard before a sitting magistrate without a formal application by way of motion or by way of appeal before the Chancellor. So she has no jurisdiction,” he told the court.
According to Hughes, the DPP is “misconceived” and has completely “misconstrued” the hierarchy of the courts.
Hughes noted that he is unsure about the basis upon which the request is being made to the Chancellor by the DPP.
“…You can’t ask a magistrate to recuse herself because you are dissatisfied with her ruling… The implication of that are frightening in the least… It means that she wants this matter transferred to a court where she can get rulings which she is happy with… That is the most perverse discharge of the responsibilities of the Director of Public Prosecution,” he stated.
Hughes said the most appropriate course of action to be taken in such case is to lodge a complaint and appeal the magistrate’s decision. “… You cannot move the Chancellor in a sitting, pending matter where there is no appeal to that court and where no appeal lies to that court,” he said.
“…The only procedure available if they feel that they are unhappy or dissatisfied with a ruling of this court is to file an appeal of the ruling….They would have to make a formal complaint and that has an entirely different proceeding,” Hughes explained.
Fair trial
In light of the circumstances, Hughes said he is unsure whether his client will be able to have a fair trial.
“…I have never seen this in my 34 years of practice…..That is the greatest threat to the liberty of this citizen….Then Mr Bascom has no fair trial to get because the implication of that is, if you transfer this to another court, the court will not follow the decision you gave,” Hughes said, before suggesting that the magistracy is under threat.
He informed the court that he will be challenging the DPP’s request by filing a constitutional motion in the High Court.
“We will file a constitutional motion… that Mr Bascom is unlikely to get a fair hearing. Not because of the court but because of the actions of the Director of Public Prosecutions in attempting to influence the outcome of the decision of the court,” he said.
After informing the court that she needs some time to consider the arguments, Magistrate Daly adjourned the matter until October 18 at 11:00 hrs.
On September 4, Bascom was faced with the three cybercrime charges. The charges allege that on August 13, he used a computer system to transmit electronic data with intent to humiliate, harass or cause substantial emotional distress to Superintendent Mitchell Caesar. He was also charged with doing the same on August 19th to Superintendent Chabinauth Singh and the same to Superintendent Caesar.
He was granted his release on $100,000 bail on each charge.
