– PPP questions ‘extraordinary’ departure from norm
Magistrate Yohhannseh Cave on Monday ruled an oral statement purportedly made by murder accused David Leander inadmissible in the Satyadeow ‘Sash’ Sawh preliminary inquiry (PI).
Leander, called `Biscuit’ and also known as David Zammett, of Vigilance, East Coast Demerara (ECD) was charged on November 8, 2007 with the murders of Sawh, his brother Rajpat Sawh, his sister Phulmattie Persaud and his security guard Curtis Robinson on April 22 at La Bonne Intention (LBI), ECD.
Earlier this year specially appointed State Prosecutor Sanjeev Datadin “had attempted to lead evidence of a purported oral statement allegedly made by David Leander during a period of questioning [on November 1, 2007] at CID [Criminal Investigation Department] Headquarters Eve Leary,” the magistrate explained. At the time Leander purportedly made the oral statement he was being questioned by then Detective Assistant Superintendent Alwyn Wilson in the presence of Detective Corporal Garnet.
Defence attorney James Bond had objected to Datadin’s attempt at leading the purported oral statement as evidence in the PI. Bond had contended that “whatever statement was extracted from the accused was done under circumstances not free and voluntary”. Leander’s attorney had further alleged that “whatever was elicited from his client was elicited under violence meted out against [him]”. From the time his client was picked up at Buxton, Bond had said, he was badly beaten and at all times was in an unconscious or semi-conscious state.
As a result, a voir dire (a mini-hearing held during a trial on the admissibility of contested evidence) was conducted. The voir dire had been ongoing since January. On Monday, after several delays in laying over submissions by both the defence and prosecution, Magistrate Cave ruled the purported oral statement inadmissible stating that “the evidence led by the prosecution was not sufficient to satisfy” the court that the “purported oral confession” on which they sought to rely was taken in circumstances that were “free and voluntary”.
The People’s Progressive Party (PPP), in a press statement issued yesterday, said it had been advised by legal experts that “the issue of admissibility of evidence is to be determined at the trial and not at the preliminary inquiry”. At a committal proceeding, the PPP said, a confession of the accused will be tendered into evidence “since its actual admissibility on the basis of voluntariness can only be determined at a voir dire hearing in the trial at the High Court”.
This, the PPP said, has been the legal procedure used in Guyana for a number of years and magistrates presiding over PIs have “routinely ruled that they have no power to determine the issue of voluntariness of alleged confession statements”. These statements, the release said, are admitted to evidence and their admissibility on the ground of voluntariness is left to be determined during the High Court trial.
However, sections of Magistrate Cave’s ruling which were seen by Stabroek News said that the court saw it fit to conduct a voir dire into the admissibility of the alleged statement based on the arguments made by both the prosecution and defence. The following is an extract of the magistrate’s ruling:
“In light of all these circumstances this court felt compelled to hold a voir dire to inquire into the admissibility of the purported statement. At the end of the voir dire the Prosecutor Mr S Datadin submitted that the court ought to admit the statement since it was inappropriate to canvass the issue of voluntariness at the stage of committal proceedings and that the proper course was to admit the statement and to leave the issue to be canvassed before the trial judge.”
The magistrate continued that should the court adopt the view proffered by the prosecution then the court’s ruling may as well be rendered ineffective. Datadin’s objection, he said, “sought to impugn the entire circumstances on which the accused was kept in custody”.
Jermaine ‘Skinny’ Charles, who was killed along with Rondell `Fineman’’ Rawlins in a shoot-out with the joint services last August shortly after he escaped from the Sparendaam lock-ups, was also before the court for these murders.
Police had issued wanted bulletins and offered a $2 million reward for the capture of Leander, Charles, Rawlins, Orlando Andrews called ‘Bullet’ or ‘Jeffrey’ of Buxton, ‘Cash’ of Buxton; ‘Not Nice’ of Buxton and ‘Sonny’ of Agricola. Leander was captured during a joint services operation in Buxton that resulted in the deaths of Noel ‘Baby’ James who had recently been released from prison after serving a sentence for larceny and Andrews who was wanted in connection with a number of murders.
When Leander first appeared at the Georgetown Magistrate’s Court, he had visible injuries about his body and could hardly walk. His attorney had said that he was tortured by police while in custody. He was later admitted to the Georgetown Hospital following an order by Justice Jainarayan Singh Jr. These allegations were again presented before Magistrate Cave when the PI commenced at the Sparendaam Magistrate’s Court.
The court, Magistrate Cave said on Monday, must express its opinion that the evidence led by the prosecution, presumably in an attempt to satisfy the court on the issue of Leander’s voluntariness when the purported oral statement was allegedly made, “does not match the gravity of the troubling allegations” made by the defence of the violence meted out to the accused.
According to the magistrate, the prosecution failed to present evidence about when the accused was arrested, who arrested him, the circumstances under which he was arrested, the manner in which he was kept in custody and the treatment he received while in custody. Further, the prosecution presented no evidence of where Leander was kept in custody prior and subsequent to him being present at CID Headquarters, Eve Leary where he allegedly underwent questioning.
The only evidence of when the accused was arrested came from Leander himself, Magistrate Cave said, and no effort was made by the prosecution to challenge this. It was also noted that the police could only account for ten minutes of the entire time Leander was in their custody and it was allegedly during this time that the alleged “incriminating” statement was made.
Not being fully satisfied that the oral statement allegedly made by Leander was taken under circumstances that were “free and voluntary”, the court admitted Bond’s earlier objection and denied the prosecution’s bid to have the alleged statement admitted into evidence.
