Dear Editor,
I note Mr Anil Nandlall’s latest response in trying to defend his position in the debate as to whether a magistrate in a preliminary inquiry can reject a confession statement (‘There are stringent requirements before custom crystallizes into law” SN, August 25). I have tried not to be personal or insulting in making my points but unfortunately not so Mr Nandlall. He comes over as being arrogant in describing my position as continuing to pontificate, representing a flawed hypothesis, fallacious assertion, etc. I will continue to be civil but if I should cross the dividing line, I would have to plead justification.

Mr Nandlall has also shown great disrespect and contempt for his senior, Mr Bernard De Santos, SC, and Mr Nigel Hughes who supported my contention that a magistrate holding a preliminary inquiry can hold a voir dire and can refuse to admit an alleged confession statement if he did not find that it was free and voluntary. He said that these two gentlemen have added no substance to the debate and that those who have publicly disagreed with him have abysmally failed!

I had stated that magistrates had been holding voir dires long before I began to practise law in 1971. What is curious in all of Mr Nandlall’s responses is that he has not denied that magistrates have indeed been holding voir dires over the years. He challenged me to cite a case that permits a magistrate to hold a voir dire and further stated that he can cite dozens of cases to show that voir dires are done by the trial court.

I had stated that where the only evidence in a preliminary inquiry is an alleged confession statement and that statement is ruled inadmissible, that that brings the matter to an end. The state cannot appeal the decision of the magistrate in discharging an accused person and as a result one will not find those cases reported in the law reports.

Another point to note is that decisions of magistrates are not reported in the law reports and I cannot recall seeing any. What you would find reported is where there is an appeal from a magistrate, that there may be a report of the decision of the higher court which determines the appeal.

The practice of holding voir dires cannot be denied and Mr Nandlall who says that this is not the practice should be the one to produce the authority to show that our magistrates have been wrong. This is simply bullyism of the highest order where one wants to change the rules of the game or move the goal posts to suit one’s agenda or as in this case to save face!

Last week there was a letter in one of the newspapers and reference was made of the treason case of Ivan Sookram, a PPP supporter. There was a voir dire held by the magistrate to determine the voluntariness of an alleged confession statement. If Mr Nandlall looked at the numerous depositions where accused persons had been discharged he would find that in over 75% there had been voir dires held by the respective magistrates.

Mr Nandlall again wishes to rely on the two authors, Dana Seetahal and Darshan Ramdhani. I again state that there was no analysis by either of these authors of what the practice has been in Guyana, and if they had done such a study, they would have had to acknowledge that voir dires have been held by magistrates and if they found that this was wrong, then I would have expected  them to have cited authorities and/or case law to back up their positions. This was not done. What they did was to paint a wide brush and generalize by adopting what pertains in England. Thus I do not agree with them in relation to voir dires in Guyana.
Mr Nandlall had also stated that a former court of appeal judge who may have been the longest serving magistrate supports his contention. I do not believe this assertion as I was informed by someone very close to this eminent person that no such support emanated from them.

Mr Nandlall states that the onus is upon me to produce a case that permits a magistrate to hold a voir dire. As I stated the practice has been on-going for years as magistrates are not robots. They have to be satisfied that any evidence against an accused person is relevant and admissible. I dealt with the issue of admissibility before and if a magistrate finds that the prosecution has not discharged the onus then the evidence will not be admitted in evidence. An alleged confession statement is presented as part of the evidence by the prosecution and as a result the rules of evidence would apply.

I find it alarming that Mr Nandlall would discard what has been the practice and then ask me to produce a case. He has produced none and I warned him last week to concede as he would be further embarrassed.

It must be presumed that Mr Nandlall was the author and/or legal expert of the statement put out by the PPP and as such he would have to save face. It is however better to accept that you are wrong rather than defend the indefensible. This would show character as we are not always right.
Mr Nandlall challenged me to produce a case as he appreciates the principle of stare decisis. This is a principle in law where decisions of a superior court are binding on an inferior court, but are not absolutely binding on the superior court or on the courts of coordinating jurisdiction but will be followed in the absence of strong reason to the contrary.

I will accept the challenge of Mr Nandlall and cite the case of the State v Augustus Webber. This is a case from the High Court of Guyana and as a result of the High Court being a superior court, all magistrates are bound to follow the decision until it is overruled by a higher court.
The facts were that Webber was charged with the offence of murder and the only evidence against him was an alleged confession statement. The judgement of Justice Ramlal was given on  November 22, 2004 and at page 5 it is reported, “ The prosecution has conceded that the depositions do not reflect that the magistrate addressed his mind to the admissibility of the purported caution statement. Let me say at the inception that a magistrate is not a mere note-taker and that Section 71 of the Criminal Law (Procedure) Act places a mandatory obligation on him to form an opinion, based upon the whole of the evidence, as to the sufficiency of evidence to commit the accused to stand trial. This places a duty on the magistrate to admit only admissible evidence to decide issues of law and to weigh the facts or evidence.

“In circumstances where the only evidence which connects an accused to a crime is a purported confession statement a magistrate would in duty be bound to only admit admissible evidence among other things. How then would a magistrate know that a purported confession statement is admissible? The answer is simple. He must hold a voir dire unless, of course, the evidence as a whole passes the ‘sufficiency’ test. In the present case the confession statement is the only evidence. There is no other evidence to rely on. The confession statement cannot merely because it was allegedly made by the accused be admissible. If this was so it would be open to the police to wrongfully charge and prosecute people on purported confessions which are concocted. How can a magistrate say that he has formed an opinion as to the sufficiency of evidence to put the accused upon trial when the magistrate does not know whether or not the confession statement is admissible especially in circumstances where the confession statement is the only evidence?”

Justice Ramlal called the magistrate to give evidence in the High Court in order to clear up the issue as to whether the magistrate had held a voir dire. The deposition did not reflect that the magistrate had held a voir dire and the judge did not believe the evidence of the magistrate that he had held a voir dire. Justice Ramlal found that the committal of the accused and his subsequent indictment were both bad. The decision in this case is that it is incumbent on a magistrate to hold a voir dire where this is the only evidence against an accused person and where an objection is taken as to its admissibility.

The two authors Dana Seetahal and Darshan Ramdani did not refer to this case and if they had done a study of our law, then they would have had to distinguish this case in order to arrive at what Mr Nandlall maintains.
I now have produced a case and I do hope that Mr Nandlall would concede. In view of the afore-mentioned I expect an apology from Mr Nandlall.
Yours faithfully,
K.A. Juman-Yassin