show cause why a writ of certiorari should not be issued to quash her decision made on the 17th day of February, 2004, to order the applicant to be committed to stand trial at the Assizes for the offence of murder.

According to the judge, on the 27th day of September 2004, an affidavit in answer was filed by Mrs. Juliet Holder-Allen, Chief Magistrate, on behalf of the named respondents, Detective Inspector Deonarine and the Attorney General of Guyana. On the 8th day of October 2004, an affidavit in reply was filed thereto.

The judge said: “The main grounds argued in this Court in support of the said nisi order being made absolute amounts to: 

firstly, that there was no evidence whatever led before the said Magistrate which entitled her to commit the applicant to stand trial for murder; and 

secondly, there was no evidence led which establishes that the applicant acted in concert with any one to commit murder. Written submissions/arguments were subsequently laid over with the Court. As a result, it is thought unnecessary to recite these arguments/submissions.”

The applicant Baijnauth, along with Gerald Alonzo, was charged with having on March 1, 2003 at Georgetown, in the State of Guyana murdered Yohance Douglas.

Judge Persaud said that it was clear, on the above charge of murder for which the two accused were jointly charged, and upon a perusal of the record of proceedings, the case for the Prosecution was based on the contention that it was Gerald Alonzo (the No. 1 accused) and not Mahendra Baijnauth (the No. 2 accused), who committed the act of discharging a loaded firearm thereby causing the death of Yohance (the deceased).

“There is absolutely no evidence on record that the No. 2 accused was an active participant in the actual shooting of the deceased. It is clear to my mind that even though both accused were charged jointly, the case for the Prosecution was that the No. 1 accused was the principal offender and the No. 2 accused the secondary offender, said the judge.

He continued: “It was certainly not the case for the Prosecution that they were both principals in the first degree since the evidence clearly reveals they did not both shoot and kill the deceased.”

According to he judge, the evidence disclosed that the No. 2 accused himself had discharged his firearm at the vehicle driven by Ronson Gray after he failed to promptly obey his instruction to stop the vehicle. The evidence further disclosed that, after the ranks had disembarked from their CRV vehicle, the No. 2 accused shouted that the car was still moving.

“Since the ranks under his supervision were all armed with loaded guns, it is clearly open to the jury to find that the act of the No. 1 accused in discharging his firearm was in furtherance of a part of the joint enterprise of halting the motorcar,” the judge said.

He continued: “Indeed, it is difficult to perceive how the No. 2 accused could have contemplated any other form of action from his ranks other than by way of the use of their firearms.”

Judge Persaud said that the Prosecution tendered as part of its case the statement made by the No. 1 accused in which he expressly stated that he discharged 10 rounds from his position behind the motorcar at the wheels of the car to disable it. 

The statement of the No. 1 accused formed part of the case for the Prosecution against the No. 1 accused and as a result it was not open to the Prosecution to disregard its contents favourable to the Defence. The Prosecution could not pick out from its own case the plums and leave the duff behind, the judge said.

He added: "It is true that there was evidence that no wheel of the motorcar was hit. At the same time, there was evidence that only one bullet had struck the car and penetrated it in the vicinity of the number plate. There was absolutely no evidence that the No. 1 accused discharged his firearm at the occupants in the car. The only reasonable conclusion one can come to is that the No. 1 accused had missed the entire car with nine bullets. He was simply not an accurate shooter. In the circumstances, no reasonable jury could come to the conclusion that the No. 1 accused had intended to kill or cause serious bodily harm to any of the occupants of car. No reasonable jury could come to the conclusion that the No. 2 accused foresaw or contemplated that the No. 1 accused would kill or injure any of the occupants of the car in seeking to immobilise it. To do so would be absurd.”

Justice Persaud added, "It is my view that, on the evidence, the committal of the No. 2 accused for the offence of murder cannot by any stretch of the imagination be allowed to stand on the basis that there was absolutely no evidence that the No. 1 accused intended to kill or cause grievous bodily harm to any occupant of the car and therefore the No. 2 accused could not be secondarily liable for his non-existent specific intent. The order nisi of certiorari dated June 3, 2004 is therefore made absolute."

The judge further explained, "Ordinarily and as a consequence of my findings, this mater would have been referred back to the Learned Magistrate to reconsider the evidence led and determine whether a committal can be made for any other offence.

"However, due to the much publicised rift between the said Chief Magistrate and the Judicial Service Commission and the consequences thereof, this is obviously not practical at this time, nor will it serve the ends of justice.

"It is my view, very unfortunate, that the No. 1 accused did not see it fit to challenge his committal for murder. The fact that he omitted to do so does not render the legal basis for his committal un-reviewable by this Court to the extent that such a review is necessary to the determination of the challenge made by the No. 2 accused to his committal. This Court will not allow itself to be bound by an erroneous legal finding against the No. 1 accused to prejudice the outcome of the challenge made by the No. 2 accused to his committal,” Justice Persaud concluded.

Friday, April 01, 2005