Acting Chief Justice Ian Chang has cited several case laws to defend his decision to grant bail to a man accused of murder.
Murder accused Hemchand Persaud was granted bail on Monday after a successful constitutional motion filed by his lawyers Sandil Kissoon.
Persaud was initially charged jointly with Rohan Singh for the April 2, 2000 murder of James Sancharran and six-year-old Afraz Khan called ‘Sanjay’.
Sancharran, called ‘Black James’, was stabbed while his son was placed on top of him and shot in the forehead at a secluded area at Cane-Grove, East Coast Demerara. The bodies were then burnt.
Singh, 45, was sentenced to 36 years’ imprisonment on September 26, 2006–two 18-year sentences which are running concurrently–for the two murders by former Appellate Judge Claudette Singh.
In a 24-page document, Justice Chang ruled that he had no difficulty in finding that the constitutional right of the applicant to a hearing within reasonable time as provided for in Article 144 has been, and is likely to be further infringed.
“He was charged since April 2000 and a preliminary inquiry necessary before commitment and indictment has not yet commenced,” Justice Chang stated in the document.
Even now, Justice Chang said the process on which the prosecution has embarked involves unnecessary delays.
“There is absolutely no reason why the prosecution should not charge the applicant with the murders of both James Sanichar and Afraz Khan rather than charging him for those murders in two separate information…which will necessitate two separate PIs and two High Court trials ( if he is committed on both charges).”
He noted that charging the applicant with both murders cannot be bad for duplicity since duplicity is a matter of form rather than substance and there is no evidence that both father and son were killed in a single activity.
If a single charge was instituted against the applicant for both victims, then a single PI can be conducted and subject to committal. The Director of Public Prosecutions (DPP) can later indict the applicant in a single two-count indictment for both murders. That indictment can then be the subject matter of a single trial in the High Court, Justice Chang noted.
Justice Chang explained that on April 27, 2000, Persaud and Rohan Singh were jointly charged for the two murders. At the time of the charges, Singh was not yet arrested by the police.
On August 3, 2000, the applicant alone was charged with the two murders in order to facilitate a PI in the absence of Singh.
Magistrate Elizabeth Hinds conducted a joint PI into the two murders and committed the accused to stand trial in the High Court.
On December 28, 2000 Justice Jainarayan Singh quashed the committal order on the ground of procedural irregularities in the conduct of the PI.
On January 3, 2001, for no apparent reason, two new charges for the same murders were again instituted against the applicant.
Magistrate Maxwell Edwards was in the process of conducting a joint preliminary inquiry into both charges when Singh was arrested.
Those proceedings were then put down sine die and two new charges were laid against Persaud and Singh, which were no different from the previous charges instituted against them.
A third PI was conducted into those charges by Magistrate Jerrick Stephney and both the applicant and Singh were committed to stand trial.
Justice Chang pointed out that this was the second time Persaud was committed to stand trial in the High Court in three PIs for the murder of the same persons.
A two-count indictment relating to each murder was filed by the DPP against both accused for the murders.
In June 2006, after the presentment of the indictment, Singh pleaded guilty to manslaughter on both counts and was sentenced to two 18-year imprisonment terms.
Persaud on the other hand pleaded not guilty and his case was therefore referred to another judge for trial.
On September 13, 2006, after the applicant was arraigned before another judge, Kissoon challenged the legal validity of the committal proceedings and the indictments.
The submissions were upheld and both committals and indictment proceedings were quashed.
It was not until June 2007 that the murder of Sanichar came up before Magistrate Yohannseh Cave for a PI.
The murder of Afraz Khan was to be the subject matter of a separate PI and Persaud’s lawyer objected to a fourth PI being held, citing an abuse of the processes and sought a stay of the proceedings.
On August 16, 2007, the constitutional motion was filed by Persaud and his lawyer seeking to have the entire criminal proceedings halted among other reliefs.
Justice Chang said that “whatever musical chairs have been played by the prosecutorial authorities between then and now and for whatever reason, the factual position to date is that no valid committal proceedings by way of PI, which is a procedural prerequisite for trial in the High Court, has been held or even commenced”.
He noted that it is clear that the applicant has successfully challenged two completed committal proceedings which were held while another was aborted by the prosecution itself.
The Chief Justice (ag) said that since the challenges made by the applicant to the completed committals were meritorious, the applicant cannot be blamed for any delay which must have been caused by those challenges.
“No blame can be attached to him for having utilized his undoubted right to access the court in furtherance of his right to due process of law when such a right was not exercised frivolously or vexatiously.”
He explained that it is the responsibility of the State to ensure that there is in place an efficient and properly staffed legal system to discharge the constitutional duty of the State to provide a hearing within a reasonable time to every accused person.
“Decisions made and acts done by prosecutorial or judicial authorities that open the door to successful legal challenges and resultant delays cannot be attributed to the accused but the weakness of the legal system,” the CJ said.
He added that an accused person is entitled to avail himself to due process in furtherance of his right to receive justice according to law.
“It is those prosecutorial and magisterial authorities which have responsibility for instituting charges and conducting the committal proceedings…which must bear responsibility for the lengthy and very regrettable delay which has attended the progress of committal proceedings which lead to trial,” Justice Chang said.
Article 139 (3) of the Constitution states that “and if a person arrested or detained upon reasonable suspicion of his having committed a criminal offence in not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall either unconditionally or upon reasonable conditions including in particular such conditions as are reasonably necessary to ensure that he appears at a later sate for trial or for proceedings preliminary to trial”.
Justice Chang said clearly the article contemplates that despite the fact that an accused person has not been tried within a reasonable time, he can still be tried for the offence at a later date.
Quoting from R. V. Ogle (1968)11 West Indian Reports, the CJ said an accused was arraigned three years after the conclusion of the preliminary inquiry.
Because of the three-year delay, between committal and trial, the material witnesses had left the jurisdiction and were unavailable to testify against the accused.
The case for the prosecution, then, was based on the deposition evidence of absent witnesses.
Justice Crane (as he then was) held that in the absence of very satisfactory explanation for the delay in bringing up the case for hearing after the completion of the PI, the accused would not be afforded a hearing within a reasonable time.
After the learned judge had so ruled, no evidence was offered against the accused and he was discharged.
It must be noted that in R. V. Ogle, the judge did not refuse to admit the deposition evidence in the exercise of his residual exclusionary discretion and uphold a no-case submission but simply refused to try the accused on such evidence on account of the prosecutorial delay (unless justified).
If there was a satisfactory explanation for that delay, it does not appear that the judge would have allowed the trial to proceed on deposition evidence.
“So even if a fair trial is possible despite unreasonable delay, the court has the discretionary power to stay the proceedings on the ground that the accused right to a hearing within reasonable time has been violated or infringed,” Justice Chang stated. (Danielle Campbell)
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