2007 No. 137 - M DEMERARA

IN THE HIGH COURT OF THE SUPREME COURT OF JUDICATURE

CIVIL JURISDICTION

In the matter the Constitution of Guyana, Chapter 1:01

-and-

In the matter of an application for constitutional redress under Articles 153 for contravention of the Applicant’s fundamental rights and freedoms guaranteed by Articles 40, 139, 141 and 144 of the Constitution of the Co-operative Republic of Guyana.

BETWEEN:

HEMCHAND PERSAUD

(Applicant)

-and-

THE ATTORNEY-GENERAL OF GUYANA.

(Respondent)

Mr. Jailall Kissoon with Mr. Sandil Kissoon,

Miss Renee Kissoon and Miss Rishi Kissoon for the Applicant.

Mr. Doodnauth Singh S.C with Mr. Lochan for the Respondent

DECISION

CHANG J.A (performing functions of Chief Justice)

On the 27th April 2000, the applicant, Hemchand Persaud, and one Rohan Singh were jointly charged on two separate Informations Upon Oath with having murdered James Sanichar and Afraz Khan respectively on the same day i.e. 2nd April 2000. At the time of the institution of those charges, Rohan Singh was not arrested by the Police.

On the 3rd August 2000, the applicant alone was charged for the murders of James Sanichar and Afraz Khan in two separate Informations Upon Oath. It appears that this was done to facilitate the holding of a preliminary inquiry against the applicant only in the absence of Rohan Singh who was still to be arrested. Magistrate Elizabeth Hinds conducted a joint preliminary inquiry into those two charges and committed the applicant to stand trial in the High Court of the Supreme Court for both murders.

But, on the 28th December 2000, Justice Jainarayan Singh, on an application at the instance of the applicant for a Writ of Certiorari, quashed the committal order made by Magistrate Hinds on the ground of procedural irregularity in the conduct of the preliminary inquiry.

On the 3rd January 2001, for no apparent reason, two new charges for the same murders were again instituted against the applicant. Magistrate Maxwell Edwards was in the process of conducting a joint preliminary inquiry into both of those charges when Rohan Singh was arrested. The said preliminary inquiry was then put down sine die and two new Informations upon Oath were filed against the applicant and Rohan Singh charging them jointly with the murders of James Sanichar and Afraz Khan respectively. Those charges were no different from those charges which were at first instituted against them on the 27th April 2000.

A third preliminary inquiry was conducted into those charges jointly by Magistrate Jerrick Stephney. Both the applicant and Rohan Singh were committed by that magistrate for the murders of James Sanichar and Afraz Khan. This was the second time that the applicant was committed to stand trial in the High Court in three preliminary inquiries for the murder of the same persons.

A two-count indictment relating to each murder was filed by the Director of Public Prosecutions against the applicant and Rohan Singh jointly for the murders of James Sanichar and Afraz Khan.

In June 2006, after the presentment of that indictment at the criminal assizes in the High Court, Rohan Singh pleaded guilty to the lesser offence of Manslaughter on both counts and was sentenced to 18 years’ imprisonment on each count. The applicant pleaded not guilty to both counts of murder and the judge, after sentencing Rohan Singh, transferred the two-count indictment against the applicant to another judge of that assizes for trial.

On the 13th September 2006, after the applicant was arraigned before another judge sitting in the assizes (namely myself performing duties as an additional judge of the High Court), counsel for the applicant made legal submissions challenging the legal validity of the committal proceedings and the indictment. I upheld the submissions of counsel and quashed both the committal proceedings and the indictment.

It was not until June 2007 i.e. the following year that the murder of James Sanichar came up before Magistrate Yohannseh Cave for a preliminary inquiry to be held. The other charge for the murder of Afraz Khan was to be the subject matter of a separate preliminary inquiry. Counsel for the applicant objected to the holding of a fourth preliminary inquiry into that charge against the applicant for the murder of James Sanichar on the ground of abuse of the processes of the court and sought a stay of the proceedings. Magistrate Cave overruled his objection and refused to grant a stay of the proceedings. However, a request for an adjournment of the matter by counsel for the applicant was granted by the said magistrate.

On the 16th August 2007, the applicant filed this constitutional motion in the High Court seeking the following reliefs:

(1)  a declaration that the applicant’s right to due process and protection under the law guaranteed as a fundamental right under the Constitution has been, is being or is likely to be contravened by the executive and judicial arms of the State

(2)  a declaration that the decision of the Director of Public Prosecutions to commence a fourth preliminary inquiry against the applicant in respect of case jackets 3582 – 3583 of 2002 or case jacket 3584 of 2002 is oppressive, unfair, an abuse of the process and a violation of the constitutional right of the applicant

(3)  that this Honourable Court make such orders under Articles 153 of the Constitution to stay the proceedings against the applicant and that no further proceedings be taken in respect of the offences for which the applicant is charged.

(4)  An order directing the presiding Magistrate of the Mahaica Magistrate’s Court to stay all further proceedings against the applicant in respect of the offences with which he is charged

(5)  That this Honourable Court make such orders, issue such writs and give such directions as it considers appropriate for the purpose of enforcing and securing the enforcement of the applicant’s fundamental rights.

(6)  Damages and/or aggravate Damages or compensation and/or compensatory damages

(7)  Such further or other reliefs as the Honourable Court deems just.

(8)  Cost.

The applicant had been charged since the 27th April 2000 with murders of James Sanichar and Afraz Khan. Whatever “musical chairs” have been played by the prosecutorial authorities between then and now and for whatever reason, the factual position to date is that no valid committal proceedings by way of preliminary inquiry, which is a procedural pre-requisite for trial in the High Court, has been held or even commenced. Indeed, after several efforts or attempts to secure a valid magisterial committal of the applicant to stand trial in the High Court for the murders of James Sanichar and Afraz Khan, the prosecution has had no success and is about to make yet another try.

It is clear that the applicant has successfully challenged two completed committal proceedings which were held to secure his committal for the murders of James Sanichar and Afraz Khan while another was aborted by the prosecution itself. Since the challenges made by the applicant to the two completed committal proceedings were meritorious, the applicant cannot be blamed for any delay which must have been caused by those challenges. No blame can be attached to him for having utilised his undoubted right to access the court in furtherance of his right to due process of law when such a right was not exercised frivolously or vexatiously.

It is the responsibility of the State to ensure that there is in place an efficient and properly staffed legal system to discharge the constitutional duty of the State to provide a “hearing within a reasonable time” to every accused person. Decisions made and acts done by prosecutorial or judicial authorities which open the door to successful legal challenges and resultant delay cannot be attributed to the successful accused but to the weakness of the legal system. An accused person is entitled to avail himself of due process in furtherance of his right to receive justice according to law. In the instant case, whatever delay which had been caused by legal challenges made by the applicant to the committal proceedings cannot be laid at the door step of the applicant since they were successful applications not frivolous or vexations challenges. It was the relevant prosecutorial authorities which had the responsibility for instituting charges against the applicant and the relevant magisterial authorities which had the responsibility for conducting the committal proceedings. It is those authorities which must bear responsibility for the lengthy and very regrettable delay which has attended the progress of committal proceedings which lead to trial. The applicant was charged with the murders of James Sanichar and Afraz Khan since April 2000. He still faces those charges to this day and is yet to have a valid preliminary inquiry commenced, let alone concluded, into any of those charges.

Even now, the processes on which the prosecution has embarked involves unnecessary delay. There is absolutely no reason why the prosecution should not charge the applicant in one Information upon Oath with murder of both James Sanichar and Afraz Khan rather than charging him for those murders in two separate Informations upon Oath which will necessitate two separate preliminary inquiries and two High Court trials (if the applicant is committed on both charges). A single Information upon Oath charging the applicant with both murders cannot be bad for duplicity since duplicity is a matter of form not of substance and it does appear from evidence adduced in the preliminary inquiries which were conducted and quashed that both Sanichar and Khan were killed not in separate incidents but in a single activity. If a single charge were instituted against the applicant for murdering both victims, a single preliminary inquiry can be conducted into that charge and, subject to committal by the magistrate, the Director of Public Prosecutions can later indict the applicant in a single two-count indictment for both murders. That indictment can then be the subject matter of a single trial in the High Court.

This Court has no difficulty in making the ineluctable finding that the constitutional right of the applicant to a hearing within a reasonable time provided for in Article 144(1) of the Constitution has been and is likely to be further infringed. He was charged since April 2000 and a preliminary inquiry necessary for committal and indictment has not yet commenced.

But a finding that the applicant’s constitutional right to a hearing within a reasonable time has been infringed does not per se give rise to an automatic remedy that further proceedings must be stayed.

Article 139 (3) of the Constitution provides:

“…………….and if a person arrested or detained upon reasonable suspicion of his having committed a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial” (underscoring mine).

Clearly, Article 139 (3) contemplates that, despite the fact that an accused person has not been tried within a reasonable time, he can still be tried for the offence charged at a later date. If not released unconditionally, the accused is to be released upon reasonable conditions, reasonably necessary to ensure his appearance for proceedings preliminary to trial or for trial.

In R V Ogle (1968) 11W.I.R.439, an accused was arraigned 3 years after the conclusion of the preliminary inquiry. Because of the 3 year delay between committal and trial , the material witnesses had left the jurisdiction and were unavailable to testify against the accused. The case for the prosecution was based on the deposition evidence of absent witnesses. Crane J. (as he then was) held that, in the absence of very satisfactory explanation for the delay in bringing up the case for hearing after the completion of the preliminary inquiry, the accused would not be afforded “a hearing within a reasonable time”. After the learned judge has so ruled, no evidence was offered against the accused and he was discharged.

It must be noted that in R v Ogle, the judge did not refuse to admit the deposition evidence in the exercise of his residual exclusionary discretion and uphold a no-case submission but simply refused to try the accused on such evidence on account of the prosecutorial delay (unless justified). If there was a satisfactory explanation for that delay, it does appear that the judge would have allowed the trial to proceed on the deposition evidence. R v Ogle is therefore early authority for the proposition that, even if a fair trial is possible despite unreasonable delay, the court has the discretionary power to stay the proceedings on the ground that the accused right to “a hearing within a reasonable time” has been violated or infringed. Crane J. made reference to Article 10(1) (now Article 144(1)) of the Guyana Constitution. He stated at 442

“In my view, the accused cannot be said to have been” afforded a fair hearing within a reasonable time” if he is now called upon to defend himself by having depositions read to him in evidence on behalf of the Crown more than three years after he was committed to stand trial unless a very satisfactory explanation for the delay be forthcoming from the prosecution. Admittedly, nullum tempus occurrit regi is a maxim of the common law; but it is not inflexible for even this time – honoured principle must give way to the Constitution”. (underscoring mine).