Practice and custom become law

Aug 17, 2009 Letters

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Dear Editor,

I note the response of Mr. Anil Nandlall, attorney-at-law and a PPP Member of Parliament, to my criticism of the PPP of Magistrate Cave in rejecting the alleged confession statement of David Leander.

Mr. Nandlall made the following points:—

(a) The statement of the PPP opined that the ruling of the learned Magistrate consisted from the current legal practice and procedure and considered the same to be extraordinary.

(b) The statement advanced no contention either expressly or by implication that the learned Magistrate was influenced by any improper motives.

(c) That I did not cite any legal authorities for my contention that the magistrate was correct to reject the alleged confession.

(a) Mr. Nandlall then cited some cases and writings in support of the contention of the PPP that the voluntariness of a confession statement is to be determined at the trial in the High Court.

The statement of the PPP as reported in the Weekend Mirror of the 18-19 July, 2009 read in part as follows and I quote “In the circumstances, we, therefore, view the departure from this legal practice and procedure by the learned magistrate as extraordinary — to say the least. Our only hope and desire is for justice to prevail”.

There clearly is an implication that the learned magistrate departed from what was normal and or legal. The innuendo that was left hanging in the air was that there was much more than meets the eye. What is meant by the words “to say the least”?

It is no good to kiss a person on one cheek and then immediately slap the other cheek. I would hope that any future criticism of any member of the judiciary would not by implication leave sullied innuendos. I am not advocating that there should not be criticisms of the judiciary, but they must be constructive and not leave anyone guessing as to what the implications are!

I would now wish to get to the most important part of Mr Nandlall’s letter that I was wrong. A preliminary inquiry is in essence a trial and at the end of the evidence of the prosecution and defence, a magistrate will commit an accused for trial in the High Court if there is a sufficiency of evidence.

A magistrate in the proceedings has to determine whether any evidence put forward by the prosecution is admissible and there are rules to determine this. As regards a confession statement the classic formulation of the principle applicable is found in the case of Ibrahim v R (1914) AC 599 where Lord Sumner stated ” It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear or prejudice or hope of advantage exercised or held out by a person in authority”.

If the only evidence at the preliminary inquiry is an alleged confession statement and an objection is taken as to its admissibility, then it is incumbent for the magistrate to hold a voire dire.

This is a trial within the trial and here the magistrate can make findings of facts as if he believes or is left in a state of doubt as to whether an accused person was beaten, tortured, coerced, threatened and or forced to give a statement, he can refuse to admit it in evidence. Once an objection is taken as to the admissibility of a confession, the magistrate has to rule on the objection. This has been the practice in Guyana for decades and this practice can be considered to have become part of our law. There have been a multitude of cases over the years where alleged confession statements have been rejected at preliminary inquiries. Mr. Nandlall was also reminding me the other day that Mr. Doodnauth Singh S.C. was successful, some years ago, in having the confession statement rejected at the preliminary inquiry of the murder of the late president of the Guyana Bar Association Mrs. Pearlene Roach and as that was the only evidence against the accused, he was discharged and set free.

I challenge Mr. Nandlall to produce any local case that prohibits a magistrate from holding a voire dire where the only evidence is the alleged confession statement. All the cases that are reported in relation to voire dires and as to the duty of a judge are those cases in the High Court, as no case where a confession was thrown out and an accused set free is reported.

The practice which has been concretized cannot be thrown out at the whims and fancy of any individual and or entity who is dissatisfied. Laws which the courts recognise are made by parliament, precedent, custom and practice. Guyana is an independent country and we have developed our own customs and practice which can and do have the force of law.

The case of Watson v Fernandes CCJ Appeal No Cv2 of 2006 bears reference to this point. The judgement at paragraph 26 states as follows — “This Court would ordinarily be reluctant to depart from established culture and practice. However, where that practice and culture are premised upon interpretation of the relevant rules of court and the matter is argued before us, we must give what we consider to be the correct interpretation of the rules.

“The common law in its ultimate origin was merely the custom of the King’s courts; the regular routine which they developed in the administration of justice became settled and known, and therefore served as the basis upon which people can forecast with some certainty the future decisions of the courts. The growth of such a custom depends to some extent upon the habit of following precedents, although it is more than likely that this development took place quite unconsciously”— page 342 from the book Concise History of the Common Law by Theodore Plucknett.

“Deductions thus formed, and established in the adjudication of particular cases, become, in a manner, part of the text of the law. Succeeding judges receive them as such, and, in general, consider themselves as bound to adhere to them no less strictly than to the express dictates of the legislature”, page 29 from the book Potter’s Outlines of English History by A. K. R. Kiralfy.

Thus from the fore-mentioned one can see that practice and custom as is obtained in the courts of an independent Guyana will be treated as law unless there is some Act of Parliament to the contrary. There is no law from our Parliament that states a voire dire in relation to a confession statement should not be done by a magistrate in a preliminary inquiry and that this is only to be done in the High Court. The practice and custom that have developed over the years in our courts in relation to voire dires are and should be accepted as our law. They have been by our judiciary over the years!

Mr. Nandlall refered to the book Commonwealth Caribbean Criminal Practice and Procedure by Dana Seetahal. When one reads that chapter one will see that it is a generalization and no reference was made to any local case either in Guyana or the Caribbean which condemned a magistrate from holding a voire dire. This is also the same position as regards comments made by Mr. Ramdani in his book.

I would therefore be grateful if Mr. Nandlall could refer me to any case from Guyana where it has been held that a magistrate, in a preliminary inquiry, was wrong to have rejected an alleged confession as not being voluntary and moreso where there was no other evidence. Failing this, he can refer me to any case in the Caribbean in which his contention obtains.

Could Mr. Nandlall also say how many voire dires he has done in the magistrates’ court? If he has, then his statement is contradictory and only self serving as a politician.

K. A. Juman-Yassin

Attorney-at-Law

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