Does a magistrate have the power to hold a voir dire?

Sep 18, 2009 Letters

Dear Editor,
I am not a lawyer, but I have been following with great interest the legal cut and thrust between lawyers Mr. Anil Nandlall and Mr. Juman Yassin, on the question of whether a magistrate in Guyana has the legal authority to hold a voir dire in connection with the admissibility/non-admissibility of evidence.
I find Mr. Juman Yassin and his supporters’ position and perspective entirely unconvincing. Mr. JumanYassin’s last letter in the SN (“Magistrates are
bound to follow the decision in State v Webber until it is overruled by a higher court”, SN, August 27) undermined his thesis for the following reasons: (a) he did not give a proper case reference in State v Augustus Webber so that a layperson like me could research and verify the case; (b) he quoted extensively from the presiding judge in the aforementioned case; but a magistrate is a creature of statute and no judge in this country can confer powers and jurisdiction on a magistrate which the creating statute does not confer.
From what my legal friends have told me Guyana has had a case law reporting system for over a century, yet Mr Juman Yassin could only find one obscure and unreported 2004 decision to underscore his arguments. This leads me to doubt the accuracy of that decision in the light of the unassailable legal authorities and logical arguments advanced by Mr. Nandlall.
I would also like to ask Mr. JumanYassin if a magistrate has the power to determine the admissibility of evidence via a voir dire, why then, if the case reaches the High Court, a second voir dire on the same evidence is necessary in that court? For me the answer is that a magistrate court conducting a voir dire is like an agent usurping the authority of his principal.
Based on Mr. Nandlall’s compelling arguments and the universally recognised legal authorities he has cited, I think magistrates conducting voir dires in Guyana would be well advised to cease this practice. Or else how would we commence repairing the battered image of the Guyanese judiciary in the eyes of our citizens, much less the wider world?
Further Mr. JumanYassin seems to suggest that Mr. Nandlall in his letters to SN conducted a not too subtle ad hominem attack on him and others. I think Mr. Nandlall focused on the substantive issues, but he could not find it possible to separate the arguments from the advocates. I am sure he meant no disrespect for his learned colleagues in the legal profession. As a consequence Mr. Juman Yassin’s request for an apology from Mr. Nandlall sounds rather petulant.
Shenney Ally

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