A controversy that has brought Thomas Fuller’s adage “Be you never so high, the law is above you” into sharp focus

Jun 05, 2019 Letters

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DEAR EDITOR,

Thomas Fuller over 340 years ago said these clarion words: “Be you never so high, the law is above you”. The divisive controversy between Magistrate Rondel Weaver, and Police Inspector Prem Narine brings those words into very sharp focus. Clinton Conway with, perhaps, blinkered professional comity, with tempered angst and, an understandable accustomed degree of police empathy, criticizes the Magistrate (“There appears to be something wrong about the jailing of the police Inspector” – published in another section of the media on Tuesday May 28, 2019). Earl Hamilton (a popular letter writer), perhaps, a Thomas Fuller inspired, supports the learned Magistrate. (“The incident between police inspector and magistrate” also published in another section of the media on May 28, 2019.) This is a matter of considerable practical significance in the administration of justice, for both the magistracy, and the prosecutorial arm of the Guyana Police Force, alike. I offer some views. I hold no brief, for either the learned Magistrate, or the police officer.
First, a Magistrate has the undoubted statutory power, and jurisdiction, to punish “EVERYONE who wilfully insults a Magistrate, or is guilty of any other grave misconduct during the hearing of any case or matter, civil or criminal…..” and as such punishment, the magistrate may order the offender “…to be detained under a warrant for that purpose in the nearest lock-up or place of detention for any time not later than rising of the court, on the same day…or to be imprisoned for any term not exceeding seven days unless, sooner discharged by the magistrate” (See Section 64 of the Summary Jurisdiction (Magistrates) Act, Cap 3:05 Laws of Guyana).
Not having had the benefit or advantage of hearing/seeing (as the learned Magistrate obviously had) the demeanour/ words/acts/omissions of Inspector Narine, I express no opinion (much less purport to make any finding) as to whether the learned magistrate was WILFULLY insulted, or whether he committed some other GRAVE misconduct. (There is a seemingly exculpatory report in a media report dated May 23 “Magistrate overruled”)
Second, a witness (police or civilian) has an undoubted statutory right (subject to conditions of contemporaneity not here relevant) “to REFRESH his memory by referring to any writing made by himself…” (See Section 84 of the Evidence Act, Cap 5:03 Laws of Guyana)
The established practice (whether this is the position at law as a matter of statutory construction of section 84, I express no opinion), is that this right is exercised, upon application by the prosecutor, by leave of the magistrate, (and not as a matter of course) whenever the witness considers that his memory needs to be refreshed, because he has forgotten, or cannot rely on memory for accuracy as to the facts/circumstances on which he is being examined and giving testimony. (Fraud cases involving inter alia multiple, many digit numbers, are classic cases where a witness must be allowed to refresh)
Third, (as a corollary of my second proposition) even allowing for out-of-court preparation of a witness by reading his (police) statement before entering the witness box, given the infinite varieties of mental capacities of our policemen (some might even be medically amnesiac; some on the other hand blessed with an elephantine photographic memory), and the multiplicity of criminal matters they investigate etc., the preponderance of case law shows that there is a judicial dispensation to grant leave to refresh to POLICE WITNESSES; even allowing them to have their witness statement in the witness box; and read the relevant parts of their witness statement, whereupon (so that it becomes admissible and evidence) the prosecutor would ask the witness “what you just read, is it your evidence?”, and the witness says “Yes that is now my evidence” or words to such effect. The underlying factor about refreshing memory, is that it is not, and never is, the witness’ memory that is under examination; but rather generally, the veracity and credibility of his evidence/testimony. This is sheer common sense, you might think.
Fourth, the statutory power of conviction/imprisonment under section 64 of SJ (M) A – see my “First” proposition (while analogous to), is not a power such as possessed by a Judge for contempt in-the-face of the Court (See Contempt of Court, Act, Cap 5:05 which restricts, by definition, its application to “Judge”.) The Magistrates’ power is LIMITED to “grave misconduct” (Such as wilful insult). The difference is not some mere linguistic semantic; contempt is wider in its conceptual variations, than “grave misconduct.” And just as how (as settled by well known case law) even a Judge is required to give the alleged contemnor sufficient particulars of the contempt and giving him the opportunity to disprove the allegation put by the Judge, a fortiori, must a magistrate do the same in respect of an alleged misconduct. Clinton Conway is right. As Bollers, CJ in Brandt v The AG (1971) also did, Conway finds biblical authority in the book of Genesis, of even God dispensing natural justice to Adam. Magistrates must read the very instructive and illuminating case of Sheldon (1964).
Fifth, being somewhat analogous to a Judge’s contempt power, a Magistrate’s grave misconduct power must be seen, understood and exercised, in the light of its usefulness being, similarly, dependent on the wisdom and restraint with which it is exercised, and to use it to suppress, methods of testimony by a prosecution’s witness which are merely argumentative (but not amounting to defiance of, or undermining of, the Magistrate’s authority), or even offensive to the magistrate’s sensibilities or sensitivities, is to use it for a purpose for which it was never intended. (See the analogous situation of an advocate in Maharaj v. AG of Trinidad and Tobago (1977) 1 All ER 411 P.C.)
Moreover, section 64 must be read, in conformity with a witness’ fundamental right under article 139 of the constitution not to be deprived of his personal LIBERTY without due process. Magistrates, even while having no jurisdiction whatsoever to determine constitutional issues, is not exempted from the application and guarantees of the supreme law when exercising their section 64 powers.
Sixth, it is human urge for persons in authority such as Magistrates (I do not exclude Judges) to be assertive when angsted, or disrespected in open court. Yet, it is judicial to resist that urge. Magistrates must be judicial. And it is a matter of considerable curiosity that not even in Stone’s Justices’ Manual (1984) Vol. 1 which covers periods of great historical antiquity (as far back even as the 15th century) is there any case law precedent of unlearned justices of peace in England, or Stipendary Magistrate (the comparison to our legally qualified Magistrates) imprisoning a mere witness for disrespectful behaviour. But, is not disrespectful behaviour capable, in law, of amounting to “insult” – the only question then being: was it wilful? Were the Sheldon principles of natural justice complied with in substance in this Weaver/Narine matter having regards to the verbal exchanges between the learned Magistrate, and Inspector Narine? And further I say not.
Detention in the lock up facility at the court/nearest police station if there is no court lock up, until the rising of the court is always an option which, assuming the conviction to be sound in law, would hardly be found to be “excessive”, even to the most leniency minded Judge, who having also the Magistrate’s version of facts, (whether by affidavit, or just a written statement) when acting pursuant to the judicial review jurisdiction conferred on a High Court Judge by section 64 (3) of the Summary Jurisdiction (Magistrates) Act, no doubt would ask: What would I have done if the witness had conducted himself like that in my court?
I end with this: the Magistracy, too, has its role to play in the administration of justice. Prosecution’s witnesses are vitally important. I am convinced that this is a hard case. Earl Hamilton, might easily have been writing for the overwhelming majority of lay Guyanese when he wrote: “Is such behaviour permissible in a Court of Law?” The administration of justice is not served nor enhanced, if witnesses can be permitted to believe that Thomas Fuller’s adage over 340 years ago, has little or no relevance to them in a magistrate’s Court, (but certainly in a Judge’s court). On one possible view, the maximum punishment of seven days imprisonment, on the hypothesis of even a valid conviction, would seem “excessive”, and for an unjudicial purpose.

Regards,
Maxwell. E. Edwards

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