Miscommunication regretted as challenge to judge’s orders dismissed

JUSTICE Roxanne George has dismissed the constitutional motion which challenged an order, by Justice James Bovell-Drakes, for the Director of Public Prosecution (DPP) to present murder accused Trion Sumner for trial and for the  accused to be placed on bail.

The hearing which lasted nine days from March 10, 2010, surrounded important constitutional issues and had its genesis in orders made by Justice Bovell-Drakes, on January 12 and 26, 2010, during the January criminal sessions of the Demerara Assizes.

That judge, firstly, ordered that the indictment against Sumner, who was jointly indicted with Squince McLennan for murder, be presented and, secondly,that Sumner be placed on bail pending trial.

But the DPP applied for a declaration that the edict of January 26, granting bail to Sumner for the capital offence was unlawful, unconstitutional and in breach of and contrary to Section 14 of the Criminal Law (Procedure) Act, null, void and of no effect.

The litigation sought to set aside, cancel, recall or rescind and, or revoke the directives and the applicant claimed that compelling the DPP and/or her servants or agents to present the indictment of Sumner and Mc Lennan and commence the trial forthwith  was unlawful, unconstitutional, a usurpation of the constitutional function and authority  of the Office of the DPP, null, void and of no effect.
The DPP was also seeking to have Justice Bovell-Drakes recuse himself from the trial of Sumner and/or Mc Lennan, though no ground for that was stated in the motion paper.

The case had engaged the attention of Justice Dianna Insanally but, in her general conclusion, Justice George said she did not feel it is absolutely necessary to, comprehensively, address the issue of  whether Justice Insanally, as a judge of coordinate  jurisdiction, should have stayed Justice Bovell-Drakes‘ order to grant Sumner bail.

Justice George held that a judge of coordinate jurisdiction is not precluded from  reviewing the procedure conducted or the decision of another judge but it would depend  on the case and what is pleaded.

Justice George said: “It is clear, in this case, that State Counsel and the applicant did not, carefully, assess the merits of the motion. A dispassionate view of it would have revealed that there was really no basis for the claims made, either in fact or in law.

She continued, “My understanding of the system has been that State Counsel discusses, with the trial judge, the cases that are listed before him or her for hearing.

Invariably, the judge indicates which cases should proceed, with emphasis being placed on those who are in custody the longest.

This case highlights that, maybe, there was a breakdown in communication between the trial judge and the prosecutors.

“I have never known there to be such a breakdown in communication as to result in such discord, between judge and State Counsel and the Chambers of the DPP, on which matters should proceed to trial.
In this sense, what has occurred is regrettable. Although the  problems that arose, have resulted in the ventilation of some interesting constitutional and legal issues, it is to be hoped that there would not be a recurrence of such a situation and  that there would be greater  synergies between the judiciary and the prosecution for the better administration of the criminal justice system, so that both victims and accused can have a fair hearing within a reasonable time in the interests of justice.
“The motion is dismissed with no order as to costs in favour of the Attorney General and with costs of $30,000 to the added respondent,” Justice George ruled.
Mr. Anil Nandlall represented the applicant DPP; Mr. Nareshwar Harnanan, Deputy Solicitor General appeared for the respondent Attorney General and Mr. Basil Williams was counsel for Sumner.