Mr. Yassin advances no contention that the learned Magistrate was influenced by any improper motives

Aug 17, 2009 Letters

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Dear Editor,

I respond to a letter published in SN, 9th August, 2009, purportedly authored by Mr. K. A. Juman Yassin under the caption, “Magistrate Yohannseh Cave acted well within his powers and duties”.

This letter constitutes a critique of a statement issued by the People’s Progressive Party (PPP) in respect of a ruling made by Magistrate Yohannseh Cave while presiding over the preliminary inquiry into the murder of former Minister of Agriculture, Mr. Satyadeo Sawh and others at the Sparendaam Magistrates’ Court, whereof the learned Magistrate excluded a confession statement allegedly made by the accused.

I have carefully read the statement of the PPP and I feel impelled to first assert that while the statement opined that the ruling of the said Magistrate consists of a departure from the current legal practice and procedure and considers the same to be extraordinary, the Statement, advances no contention whatsoever, either expressly or by implication, that the learned Magistrate was influenced by any improper motives as the letter signed by Mr. Yassin alleges. In fact, when I read the statement I immediately observed a discernable effort by its author(s) to avoid such putrid interpretation. This was clearly lost upon Mr. Yassin.

I now wish to deal with the gravamen of the letter. The letter postulates its main thesis as follows: “I wish to state that the statement that confession statements are accepted in evidence at preliminary inquiries and that only at a voir dire in the High Court is the matter of voluntariness determined is completely erroneous.” [Sic.]

Unfortunately, learned counsel did not cite any authority in support of this contention and indeed cited no authority whatsoever in support of the many legal propositions advanced in the said letter. Having regard to the supercilious tenor of counsel’s letter, it may not be inappropriate for me to caution that it still is a rudimentary but fundamental principle of legal research that legal argumentations, when proffered, ought to be supported by proper and relevant legal authorities. One’s personal experience, irrespective of how “legendary” or lengthy it is, has never been regarded as a source of proper legal authority.

I will now cite only a few legal authorities to demonstrate that the PPP’s statement is neither as “unjustified” nor “without basis” as learned counsel accuses in the penultimate paragraph of his letter.

Blackstone’s Criminal Practice (1996), one of the foremost authorities on criminal law and procedure in England, at page 1098 cites with approval, the dictum of May L.J. in Oxford City Justices, Ex Parte Berry (1988) Q.B. 50 at page 51, as an accurate declaration of the law, practice and procedure in respect of the issue under review. His Lordship stated thus:

“…the question of the voluntariness or otherwise of alleged confessions by an accused has hitherto seldom, if ever, been investigated in committal proceedings before Justices, [magistrates] save perhaps to have some matters of fact established in the cross-examination of prosecution witnesses to found a subsequent challenge to a confession at the ultimate trial on indictment.”

If only for completeness, it behoves me to point out that certain statutory interventions now reside in magistrates in England, an exclusionary power in relation to confession statements which they never enjoyed under the common law. These statutory provisions do not obtain in Guyana. Thus we remain bound by the common-law.

In the Commonwealth Caribbean, the pre-eminent authority in this area of the law is Commonwealth Caribbean Criminal Practice and Procedure, Second Edition, (2006), by Dana S. Seetahal SC of the Trinidad and Tobago Bar. At page 171 of this text, the learned author deals with the issue of admissibility of evidence at a preliminary inquiry. After reciting the English practice to which I have alluded above, the learned author adumbrates the position in the Caribbean to be similar and as follows:

“In the Commonwealth Caribbean, examining magistrates act in accordance with this practice [the English practice] on the basis that disputed admissibility questions are for the trial court. At committal proceedings, therefore, a confession of the defendant will be tendered into evidence since its actual admissibility on the basis of voluntariness can only be determined on a voir dire hearing at trial. Until then it constitutes legal evidence.”

The latest academic work done on this subject in the Caribbean is that of our own and my personal friend, Mr. Darshan Ramdani, Attorney-at-law, now practicing in Grenada. In a scholarly exposition titled, “Confession Evidence – Practice and Procedure in the Commonwealth Caribbean”, (2008), addressing the issue of admissibility of confession statements at committal proceedings Mr. Ramdhani, posits thus at page 167:

“Under the common law, the committing magistrate is not expected to embark on a determination as to whether a confession is voluntary or not. This would be left for the trial judge to determine.”

Additionally, I am aware of a circular emanating from the Chambers of the Director of Public Prosecutions propounding certain procedural guidelines for magistrates in respect of, inter alia, the admissibility of confession statements at a preliminary inquiry. Those guidelines are crafted in line with the aforementioned authorities.

I hope that with the assistance of the above cited authorities, I have clarified any obfuscation Mr. Yassin’s letter may have caused. The admission by Mr. Yassin that he excluded confession statements as Chief Magistrate at preliminary inquiries is undoubted testimony to the imperfections which inhere in our legal system but which we must at least strive to minimize in order to reduce miscarriages of justice.

Needless to say that the insinuation of Mr. Yassin that the PPP, by its statement, is attempting to compromise the independence of the judiciary is manifestly unworthy of the dignity of a response.

Mohabir Anil Nandlall MP,

Attorney-at-Law

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