A ruling by Justice Franklin Holder on an application for judicial review of a decision by Senior Magistrate Leron Daly for the two counts of misconduct in public office against former Deputy Chief Elections Officer (DCEO) Roxanne Myers to proceed indictably has been deferred to October 13.
The application was filed by the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, who is seeking to have the Magistrate’s ruling quashed.
In February, Magistrate Daly ruled that a preliminary inquiry (PI) would be conducted into the charges against Myers, to determine whether there is sufficient evidence to warrant a jury trial at the High Court.
In coming to her decision, the Magistrate had overruled submissions by a team of lawyers hired by the DPP to prosecute the electoral fraud cases against Myers and others. The prosecutors had moved to have the matters tried summarily, which would have seen the matters being heard and determined by a Magistrate.
But Myers’s lawyers, Nigel Hughes and Ronald Daniels, objected to the prosecution’s request on the ground of the gravity of the offence, and as such, sought to have the charges remain indictable.
The Magistrate ruled in favour of the defence.
It is alleged that between March 4 and 14, 2020, at High and Cowan Streets, Kingston, Georgetown, without any reasonable excuse or justification, Myers wilfully misconducted herself, together with former Region Four Returning Officer Clairmont Mingo and others, to declare a fraudulent account of votes for the Regional and General Elections of March 2, 2020, the said misconduct amounting to a breach of the public’s trust in the office of the said Returning Officer.
In her application for judicial review filed against Attorney General Anil Nandlall, SC and Magistrate Daly, the DPP is seeking an order of certiorari, quashing the decision of the Magistrate on the ground that it is irrational, unreasonable, arbitrary, ultra vires, without legal foundation, contrary to natural justice, and without legal authority.
Among other things, Ali-Hack is asking the court to grant an advisory declaration that, in the circumstances of the charges and in compliance with the Constitution of Guyana and a fair trial, the charges against Myers proceed summarily.
In her application, the DPP deposed that Magistrate Daly, in her oral reasons, said the charge against the former DCEO was serious and should be heard indictably. The DPP has said the Magistrate likened the offence for which Myers is charged to that of armed robbery and theft, as far as the court’s sentencing powers are concerned.
According to Ali-Hack, Magistrate Daly also expressed concerns about the maximum penalty that could be imposed by the Magistrate’s Court, and effectively stated that the summary court is not able to punish adequately for the offence.
The DPP is contending that Magistrate Daly’s decision engages Article 144 of the Constitution, with the likely result that the case may not be tried within a reasonable time.
In arriving at her decision, the DPP contended that the Magistrate failed to consider that the High Court could impose no greater penalty than the Magistrate’s Court on any conviction for the offences charged, and erroneously proceeded on the basis that the High Court could in certain circumstances impose a greater penalty than the Magistrate’s Court.
“The Learned Magistrate took into account matters Her Worship could not properly in law take into account, namely that on a trial by indictment before the High Court, the Judge could use aggravating matters disclosed by the offences to impose a penalty which was greater than that which could be imposed by the Magistrate on summary disposal,” the DPP argued.
The Senior Counsel submitted that the question of the adequacy of the punishment which could be imposed by either court was the substantial basis for the exercise of the Magistrate’s discretion. She argued further that the Magistrate failed to consider that the right to a fair hearing within a reasonable time is for the benefit of both the prosecution and defence.
The DPP argued, too, that Magistrate Daly failed to consider and/or failed to take into account that the resources of the State would be better utilised by the expeditious hearing and determination of the charges against Myers.
Against this backdrop, Ali-Hack is contending that the “decision by Magistrate Daly offends Article 144 (1) of the Constitution, which provides that all criminal cases should be afforded a fair hearing within a reasonable time.”