Judge rules against prosecution, says magistrate can proceed indictably on charges against Myers
High Court Judge Franklyn Holder has ruled that Magistrate Leron Daly can proceed to conduct a Preliminary Inquiry (PI) into the misconduct charges laid against former Deputy Chief Election Officer (DCEO) Roxanne Myers.
Delivering his decision virtually yesterday, Justice Holder said he did not find as claimed by the team prosecuting the matter, that Magistrate Daly acted either unreasonably or irrationally.
The judge said that in fact, he found that that the magistrate had properly exercised her discretion in accordance with Section 61:1 of the Summary Jurisdiction Act to try the matter indictably.
Justice Holder said he found that Magistrate Daly had addressed her mind to the principles laid down in the Act, which made her decision to proceed indictably—reasonable—while nothing that she did not take “irrelevant” factors into consideration as claimed by the prosecution.
Against that background, and referencing a plethora of legal authorities, the judge said that there was no need for the superior court to interfere with the magistrate’s exercise of discretion.
Magistrate Daly had previously ordered that a PI be conducted to determine whether there is enough evidence for Myers to stand trial at the High Court before a judge and jury which would decide her fate.
Pressing for the matters to be tried summarily, however, the prosecution subsequently filed an application challenging the magistrate’s decision against hearing the charges summarily.
Magistrate Daly had ruled that the two counts of misconduct in public office charges would remain indictable, after upholding submissions made by Myers’ attorney, Nigel Hughes.
In its application before the Supreme Court, however, the prosecution sought an order quashing the magistrate’s decision which it contended was among other things, irrational, unreasonable and ultra vires.
The prosecuting team—comprising attorneys Darshan Ramdhani QC, Glen Hanoman, Ganesh Hira, George Thomas, Mark Conway and Donavon Rangiah—had argued that trying the matters indictably would take too long and violate Article 144 of the Constitution which provides for cases to be heard within a reasonable time.
The battery of attorneys said that given that the matters arose from issues surrounding the 2020 General and Regional Elections, they are of significant public importance and it is therefore key to the administration of justice that they be heard and completed in the shortest possible time.
They contend, too, that “the criminal justice system functions slowly especially as it relates to jury trial and that this is now exacerbated by the Covid-19 pandemic which has affected jury trials severely.”
According to the prosecution, there were hundreds of matters awaiting trial before the High Court and given the slow pace with which trials are conducted, it was unlikely that the charges against Myers “would be heard within the next four years if not much later.”
It was against this background, that the prosecution was hoping Justice Holder would have allowed the matters to be dispensed with summarily or in the alternative would have directed the magistrate to reconsider the discretion afforded her under the Summary Jurisdiction Act.
While acknowledging that it is the normal practice for charges such as those leveled against Myers to be laid indictably, the prosecution advanced, too, that such matters are classified as hybrid offences, meaning that they could be heard either indictably or summarily.
Referencing Magistrate Daly’s reasoning that the matters were serious and should therefore be tried indictably given that the maximum penalty she could impose would be inadequate for the offences; Hira and Rangiah had said 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.
According to the prosecution, the magistrate considered factors she could not properly in law have taken into account—being that—on trial before the Supreme Court, a judge could use aggravating matters disclosed by the offences to impose a penalty greater than could be imposed on summary disposal.
The prosecution contended that the adequacy of punishment seemed to have been “the substantial basis for the exercise” of the magistrate’s discretion; while adding that she 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 prosecution was arguing also, that when Magistrate Daly made her decision, she failed to consider that the state’s resources would be better utilized by the expeditious hearing of the charges.
It contended, too, that in the absence of any “alternative effective form of redress,” unless the reliefs sought were granted “the limited resources of the state would be wasted and the charge is likely not to be given a fair hearing within a reasonable time.”
The prosecution had said that in every instance where the state has proffered a charge of misconduct in public office, the matter has been dealt with by way of a summary trial.
Myers made her first court appearance in relation to the two charges last October and was released on $300,000 bail.
Last August, the police announced that they had launched an investigation into the elections and the events that occurred during the ensuing five months. Since then, a number of individuals including APNU+AFC agent Volda Lawrence, and several GECOM officials, including former Chief Election Officer, Keith Lowenfield; former District Four Returning Officer, Clairmont Mingo; Sheffern February, a clerk employed with GECOM; and Enrique Livan, a GECOM Information Technology officer, have been charged.