– Attorney-General

THE historic precedent set by High Court Judge, Sandil Kissoon, who ruled that a Magistrate erred when he granted bail to two Brazilians who were charged for trafficking narcotics and entering Guyana illegally, will “go a far way” in balancing the interests of both parties to a legal action.

This was the view of Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., who initiated the action — the first of its kind in Guyana — to challenge the decision of Senior Magistrate, Alex Moore.

The High Court ruled that Magistrate Moore’s decision to release the two persons on bail was “erroneous and perverse”.

While offering quick comments on the matter on Saturday, Mr Nandlall highlighted that the granting of bail by Magistrates have often evoked great public commentary and controversy, however, he opined that the new precedent would pave the way for persons to challenge unreasonable decisions.

“Normally, everyone believes that justice is a one-way street, that only the accused person has rights; that is a complete and utter fallacy. Justice is a two-way street; on the one side you have the accused person and he is accorded certain legal protection which the State will valiantly ensure he receives.

“But on the other side, you have the victim of crime, you have the public interest, you have the State interest that must also be protected. Both sides are entitled to the protection of the law and both sides are entitled to justice, so this case will go a far way, I think, in bringing balance in what is considered to be an unbalanced situation,” the Attorney-General contended.

The matter involved Salem Nobrega De Alencar, 64, and André Pereira, 30, both of whom were arrested and charged following the discovery of some 1,000 pounds of cocaine aboard a plane that crash-landed in a savannah at Orealla, in Region Six on May 20, 2021.

Magistrate Moore, who presides over the Springlands Magistrate’s Court, had granted the men bail in the sum of $3M each on the drug-trafficking charge, and another $50,000 each for the illegal entry charge during their second court appearance.

LEGAL PRINCIPLES
Nandlall reasoned that bail is granted in accordance with certain legal principles and as it relates to certain offences, bail is only granted upon the satisfaction of specified circumstances in the law.

“Possession of narcotic for the purpose of trafficking is one of such offence. The law says that bail shall not be granted until there are special circumstances which must exist. That has been interpreted to mean that those special circumstances must only relate to the circumstance of the case and not personal to the defendant,” he said.

He highlighted that in this case, bail was granted to two Brazilians who entered Guyana illegally for a serious offence which the law says bail shall not be granted for, unless special circumstances exist.

“To grant bail in such a circumstance would have resulted in releasing those people who are illegal in Guyana, into the streets of Guyana, thereby perpetuating another illegality because they have no standing in Guyana so where are you releasing them to?” Nandlall asked.

When the decision was made by the learned magistrate, the Attorney-General, who represents the State in legal matters, challenged it. It was the first time in Guyana’s history such a step was taken.

“You would appreciate that the State normally represents the magistrate, in this case the State decided that it would not accept what, in the State’s view, was a plainly erroneous and perverse decision and we challenged it,” Nandlall said.

Importantly, as part of the ruling, the judge held that the magistrate’s decision to admit the duo to bail, in accordance with conditions for granting bail under Section 94 of the Narcotics Act, Chapter 10:10 were not satisfied, given that said magistrate took into account factors relating to the offender, and not the offence, as is required by the said Section 94.

Justice Kissoon found that there was no basis, fact or circumstances, existing or apparent, nor any Principle of Law or consideration relevant or applicable in the circumstances of the case to warrant or justify the decision of Magistrate Moore to release the men on bail.