AFTER hearing oral submissions, High Court Judge, Sandil Kissoon, suspended the bail which was granted by Senior Magistrate Alex Moore to two Brazilians who were charged for cocaine trafficking and entering Guyana illegally. Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., had moved to the High Court to challenge Magistrate Moore’ decision. His case came up for hearing before Justice Kissoon on Wednesday. Salem Nobrega De Alencar, 64, and André Pereira, 30, were arrested and charged following the discovery of some 1,000 pounds of cocaine aboard a plane that had crash landed in a savannah at Orealla on May 20.
Magistrate Moore granted each of the men $3M bail on the drug-trafficking charge and $50,000 bail for the illegal entry charge during their second court appearance.
The Guyana Chronicle had reported that residents, who had gone to the scene after the crash, advised the two male occupants to remain at the site. However, the pilot, De Alencar; and co-pilot Pereira, made their way into the village under the guise of seeking accommodation and fuel.

Reports are that the men claimed that they were on their way to Suriname to deliver a shipment of magnesium. During an inspection of the aircraft, 453 packs, each containing one kilogram of cocaine, were found. The cocaine amounted to almost 1,000 pounds. The drugs, two GPS devices, a radio system, three smartphones, and the men’s Brazilian identification cards were seized. On May 27, they appeared at the Springlands Magistrate’s Court for the aforementioned offences and were remanded to prison by Magistrate Moore. When the case was recalled on July 22, police prosecutor Orin Joseph laid over an analysis report for the drugs, police statements, photographs of a Whatsapp conversation taken from a cellular phone reportedly connected to the men and a compact disc with the police interviewing them. Joseph also requested an additional adjournment to secure a few more statements from investigating ranks as well as responses to inquiries made to the authorities in Brazil, Suriname and Guatemala.

On that same date, the men’s attorney renewed an application for bail on the grounds that the defendants may have contracted the COVID-19 virus and were being assaulted by other prisoners. Despite the prosecutor pointing out to the court that these claims were not supported by medical or other evidence, Magistrate Moore released them on bail. Owing to the delay in releasing them from prison, their attorneys moved to the High Court and filed Habeas Corpus proceedings before Justice Kissoon. Similarly, Nandlall moved to the court, filing proceedings for judicial review against the magistrate’s decision to grant bail as well as an order to suspend the bail until the hearing and determination of the judicial review case. On Wednesday, when the case was called in the High Court, Nandlall appeared in person for the Commissioner of Police while Periera was represented by attorney-at-law, Nigel Hughes and associates. It is unclear if the other accused has legal representation in this matter. Justice Kissoon upheld the submissions made by the AG that the accused persons should remain in custody until the hearing and determination of the judicial review case.

The judge also granted an interim order staying and suspending the bail granted by the magistrate pending the hearing and determination of Nandlall’s application.
The AG is contending that Magistrate Moore’s decision is in excess of his jurisdiction since the men’s attorney failed to satisfy or observe conditions or procedures required by law. According to the AG, the magistrate acted “unreasonably, irregularly or improperly” in exercising his discretion which resulted in an abuse of his power. Magistrate Moore, the AG added, acted in bad faith for an improper purpose when he took into account irrelevant considerations when exercising his discretion to grant bail in relation to the drug-possession charge. The AG is contending that according to Section 94 of the Narcotic Drugs and Psychotropic Substances (Control) Act, magistrates are prohibited from granting bail unless there are special reasons for doing so, and that no such special reasons in law were proffered when Magirate Moore did so. As it relates to the claims of possibly contracting COVID-19 and physical violence at the hands of other prisoners, the AG noted in his documents that although there was no supporting medical or other evidence in court, the men were released on bail.

It is for these reasons that Nandlall is asking the court to grant an Order of Certiorari, quashing the decision of the magistrate to grant bail to the two foregin nationals.
Meanwhile, regarding the delay in releasing the prisoners despite the granting of bail, the AG said the men were a flight risk since they do not have any ties to Guyana. Their release would have caused them to violate several provisions in Guyana’s Immigration Act, he said. Prosecutor Joseph, in his affidavit in support of Nandlall’s application, agreed that the prisoners are foreign nationals in Guyana and therefore are flight risks. He pointed out that should they flee the jurisdiction, the state would be left at a severe disadvantage since it would have to expend time and resources to find the prisoners and to have them extradited for prosecution.
“I am advised by my attorneys-at-law and verily believe that given the magnitude of the quantity of narcotics recovered by the police officers, the severity of the offences committed by the prisoner and the overwhelming evidence that the learned magistrate acted in excess of his jurisdiction by unreasonably, irregularly and/or improperly exercising his discretion to grant bail to the prisoner. This decision was made in bad faith and clearly demonstrates an error of law, whether or not apparent on the face of the record,” the prosecutor added.