Dear Editor,
I wish to respond to a letter published in Sunday Stabroek, August 9, authored by Mr KA 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 Satyadeow Sawh and others at the Sparendaam Magistrate’s 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 consisted of a departure from the current legal practice and procedure and considered the same to be extraordinary, the statement advanced no contention whatsoever, either expressly or by implication, that the learned magistrate was influenced by any improper motives as the letter signed by Mr Juman-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 Juman-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.”
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 LJ May in Oxford City Justices, ex parte Berry (1988) QB 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 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 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, an attorney-at-law now practising in Grenada. In a scholarly exposition titled, “Confession Evidence – Practice and Procedure in the Common-wealth 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 Juman-Yassin’s letter may have caused.
The admission by Mr Juman-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 the insinuation of Mr Juman-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.
Yours faithfully,
Mohabir Anil Nandlall,
MP
Juman yassin forever gets it wrong.To put one’s foot in one’s mouth repeatedly is in the non-medical world called a foot and mouth affliction.Nandalall has turned juman yassin on his head.
A voire dire or a trial within a trial can be conducted by a magistrate presiding over the case that derived the voir dire.
Where was Anil Nandlall’s letter when a magistrate threw out charges against Roger Khan and two others for bein gin possession of a spy equipment, high-powered weapons and a bullet prrof vehicle?
Where was Anil’s letter when the DPP decided to drop charges against the Fidelity executive in the Polar Beer scandal and preferred charges against low-level Customs officers? Anil is one of those lawyers whose views are conveniently known when the PPP and its government are in the vice-like grip of truth and reality.
That is the perverbial question Dandy Andy. Where was Anil Nandalall when the Court ruled that the scrutineers money should be divided equally among all parties not just the PPP and Corbin.
Where was this chap??
What we have here is three persons “opining” – Mr Juman-Yassin, Mohabir Anil Nandlall and the PPP.
Perhaps Mr. Mohabir Anil Nandlall could tell why is it he didn’t WIN the Buddy’s fuel case.
Anilji,
Thanks for the clarification. It shows clearly that the PPP respects the independence of the judiciary and this augurs well for the continued progress in Guyana.
The suspect was beaten within an inch of his life, even Stevey Wonder could have seen that his confession was not voluntary. Forget all the legalese, the law was based on the application of common sense but it appears that some of our highly trained lawyers are forgetting this. The fact is he, like many others was beaten, then “confessed”. By the way, I now have to collect some beers after I bet that Leander would die before the case was wrapped up, anyone could have seen it coming, given past events in Guyana.
I thought that K. Juman Yassin made some very good points in his letter and based on K. A. Juman Yassin’s experience compared to Mohabir Anil Nandalall, I admit that KAJY will always have the edge if there is any doubt or the points made are not clear cut. I also admit that I don’t know much about law, hence I most eagerly await the response from the former Chief Magistrate, Mr. K. A. Juman Yassin.
thankyou
Bredo seems like your blog have something to do with the names of the contending parties, thats what I see through my crystal ball.
Ow!!! coolieman, even dat an’ all, man. Allyuh nah deh down hey. Gad help allyuh!!!
Now Coolieman, why would you suggest such a thing? Is it because I am a Muslim or K.A. Juman-Yassin is a Muslim (or we both have Muslim names)?
Please check my comments, letters, etc., over the years, in all 3 dailies in Guyana before insinuating that I am biased. I need not get into specifics, because I have been writing in these pages for a long time and I always try my best to be fair and balanced.
In any case, I have known Mr. K.A. Juman-Yassin for a long time and even though I have met him only on a couple of occasions, like many Guyanese one has to be brain dead to not know of him. I also know that he never caved in to PNC pressure during the PNC reign and if for that alone, I have a lot of respect for him. His service as a magistrate and Chief magistrate speaks for itself. He has over 40 years experience in the field.
Furthermore, I know of nothing that K.A. Juman-Yassin would have done or said publicly that would make him anti-PPP. He has in the past defended this Govt. when he believed that they were on the right side of things. Please tell me what’s wrong with constructive criticism. As for Mr. Nandlall, I simply do not know much about his law practice or his experience. It does not mean that I disrespect the man.
As I stated previously, if a point is not clear cut, I will give the edge in any argument to the most experienced person in that field. I also stated clearly that “I don’t know much about law.” Hence, my uneducated opinion on this matter means nothing.
The problem with you my friend, is like that of the PPP govt. every comment is viewed under the microscope as “either you are with us or you are against us”. You all have thing skin. This is not the first time that the PPP has been critical of a decision by a sitting magistrate and going public about such matters will undoubtedly be seen as some sort of indirect or even direct pressure to influence decisions made by the bench.
Mohammed mek sure you put your signature line in there man that you doan like the PPP or anything and you are not really a PPP apologist……
Mr. Nandalall likes to give the impression of a very eurdite scholar of the law. He seem to be making judgements and cutting and pasting ‘authority’ and statements as “evidence” in support of his contentions….this is not the first time I have seen him do this in letters to the press on supposedly ‘legal issues’ .I’ll like to hear other lawyers on this issue.
I don’t think the letter by Juman Yassin needs to stand the standard Nandalall is trying to impose. After all its a correspondence in a letter to the editor page and not a legal submission or argumentation in a court of law. It supposedly is a legal issue but it is presented for the lay person. I hope some other lawyers share their thoughts on the issue here in a manner we can all understand and not that we be ‘cowed’ in believing that a point of view makes sense because it supposedly adheres to the “rudimentary but fundamental principle of (good) legal research that (soild)legal argumentations.
In addition, since Mr. Nandalall is so knowledgable and correct, then he should understand the continium of expectations around policy. That guidelines have very huge levels of discretion and flexibility in its adherence thus, one is not bound by it for he thinks differently (rightly or wrongly). Rather a more apt policy description would have been ’standards’, which were developed based on the legal authority. Like legislation and regulations, standards are meant to be followed with no discretion in adherence…..I learnt this in public policy and administrative law, and by the way, I forgot the legal authority but remembers the philosophical logic and the principle in its applicant. On a point of principle, if the DDP means that their preseciptions should be followed to the letter then, I suspect then, that a statement of ‘legal standards’ (standards to be met in the dispensing of justice) would be more appropriate than a statement of ‘legal guidelines’.
EVAN, YOUR VIEWS ON THIS TOPIC SEEM TO emanate from a professional, with sound inteligence and comendable ability to articulate same, … and so you have thrown me into confusion, as to why on so many previous blogs you seem to fall in line with the irrational and “billious”, blogs of losers… cant you find it in your heart to “put guyana first’ in your contributions… ? ..
We always have stupidness occurring from time to time in Guyana.Voir dire.A trial within a trial, etc.When will they stop this foolishness?
Does Nandalall know what conflict of interest is?