1100-pound cocaine bust at Orealla: Judge overturns Magistrate’s decision to grant bail to Brazilian nationals

Finding that it was erroneous in law, irrational, and without lawful basis, High Court Judge Sandil Kissoon has quashed a decision by Senior Magistrate Alex Moore to grant $3 million bail each to Salem Nobrega De Alencar and Andre Luiz Pereira – the Brazilian nationals who are charged for a massive 1100-pound cocaine bust made here last year, as well as illegally entering Guyana
This is according to a statement by the Attorney General’s Chambers which described the ruling as “historic” and a “matter of high public importance”. Initially charged with trafficking in narcotics on May 27, 2021, the foreigners were remanded to prison by Magistrate Moore.

However, they appeared before him again on July 27, 2021, and were granted their pre-trial liberty. But although granted bail, they were not released from custody, as Police Sergeant Mark Fraser, on behalf of the State, filed judicial review proceedings to have their bail revoked on the grounds that they had no ties to Guyana, and also that upon their release, they would be perpetually violating the Immigration Act.

On August 18, 2021, Justice Kissoon granted an interim order suspending Magistrate Moore’s bail order, until the High Court determined the judicial review application. The Attorney General’s Chambers’ statement explained that in considering the application, Justice Kissoon identified three issues for determination.
These were whether the High Court has jurisdiction to review the decision of a Magistrate sitting in criminal matters; whether Sergeant Fraser had jurisdiction to institute the proceedings; and whether the Magistrate acted in excess of his jurisdiction unlawfully, unreasonably, and irrationally when he granted bail to the two accused of the alleged offences.

On the first issue, Justice Kissoon, according to the statement, stated unequivocally that the High Court has supervisory jurisdiction to review decisions over the magistracy in both civil and criminal proceedings subject to settled exceptions.
The missive added that the Judge, in pronouncing on Guyana’s common law heritage, alluded to the House of Lords’ decision of Neil v North Antrim Magistrate’s Court 1992 UK HL 1 which re-affirmed the jurisdiction of the High Court to quash the decision of an inferior court, tribunal and other statutory bodies for errors of law.
“Prior to the promulgation of the Judicial Review Act, No 23 of 2010 in Guyana, the procedure governing the grant of prerogative writs was governed by the Crown Office Rules 1906,” the statement reads.
It added: “Justice Kissoon postulated that the High Court has a supervisory jurisdiction to guarantee the integrity and fairness of summary proceedings referenced Chief Justice Chang, SC in an application by Sampson (2011) who posited that in applications for judicial review of criminal proceedings, where it would cause delay or obstruct criminal process which in the public interest ought to be tried with expedition, the High Court ought to exercise scrutiny and satisfy itself that there are grounds for making the application, there has been no delay, no alternative remedies available, or vexatious conduct by the applicant for the Court to refuse the application.”

It was further explained in the statement that the modern approach to challenging interlocutory decisions made by judicial officers in summary criminal proceedings is outlined by the following principles: where there is no factual dispute; where there is no disruption or delay in the substantial criminal proceedings; and where the delay, if left unchallenged, may incur expense resulting in an injustice.

As it relates to the second issue, the Attorney General’s Chambers noted that the Judge determined that members of the Guyana Police Force have conduct of all criminal proceedings in the Magistrate’s Courts. The Chambers, in its statement, said that Justice Kissoon held that charges against the Brazilians were laid by Sergeant Fraser by virtue of section 59 of the Police Act which speaks to the rights of officers, inspectors, and subordinate officers to prosecute cases.

“As it relates to the third issue, “The Honourable Justice Sandil Kissoon expounded that irrespective of Senior Magistrate Moore’s decision to not respond to the proceedings filed against his decision to grant bail to Andre Luiz Pereira, this does not act as a bar to prevent the Honourable Court from judicially reviewing the said decision,” the statement said.
According to the Chambers, Justice Kissoon held that the conditions for granting bail under Section 94 of the Narcotics and Psychotropic Substances Act, were not satisfied given that Magistrate Moore took into account factors relating to the offender and not the offence as is required by the said section.
As such, the statement further explained that Justice Kissoon held 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 matter to warrant or justify the decision of Magistrate Moore to admit them to bail.

Irrational, without lawful basis
The AG Chambers noted that Justice Kissoon ruled that Magistrate Moore’s decision was plainly not only irrational but perverse. “Justice Kissoon further held that the learned Magistrate committed grave errors in the interpretation and application of Section 94 and what constituted special reasons which went to the Magistrate’s jurisdiction and as such, without more makes his decision liable to be quashed.”
Justice Kissoon, the statement added, held that Magistrate Moore quantified erroneous and irrelevant considerations which had no bearing on the issue and matter before him and held that the decision of Magistrate Moore to grant bail to Pereira and De Alencar was in the circumstances erroneous in law, without unlawful basis, plainly irrational, untenable, perverse, was not a judicial one and made without jurisdiction as it fell outside the bounds of what can be construed as reasonable in the Wednesbury sense.
Attorney General Anil Nandlall, SC, appeared on behalf of the State in this matter in association with Deputy Solicitor General Beverly Bishop-Cheddi, Assistant Deputy Solicitor General Patricia Shepherd, and State Counsel Saabira Ali Hydaralie. Attorney-at-Law Nigel Hughes appeared on behalf of Pereira.

Crash-landed
De Alencar, 60, and Pereira, 30, were jointly charged with the offence back in May 2021, following the discovery of 535.8 kilograms of cocaine on board a green-and-white Beechcraft Bonanza plane with registration number PT-SRR that crash-landed at Orealla, Corentyne River in Region Six (East Berbice-Corentyne) on May 20, 2021.
The men reportedly told residents of Orealla that they were travelling and visiting several areas to do sport fishing and other leisure activities, but encountered difficulties with the weather. They further claimed that the aircraft was almost out of fuel, and they had gotten lost after circling the area for some time.
However, the men were subsequently accosted by Police ranks, who questioned them about their presence in the area. They then took the ranks to the aircraft, where a search conducted unearthed a quantity of cocaine. The estimated cost of the drug is $2.9 billion.
The Customs Anti-Narcotics Unit (CANU) had reported that, from all indications, the aircraft was heading to Suriname. Investigations revealed that they had allegedly flown from Brazil to Venezuela, and thereafter landed in Guyana without authorisation from the Guyana Civil Aviation Authority.
Letters were dispatched to law enforcement agencies in Brazil, Suriname, and Guatemala to enquire the meaning of the abbreviation VTNO which was a label attached to the packages containing the cocaine found on the plane. In addition to the 450 bricks of cocaine which each weighed one kilogram, two Global Positioning Systems, one radio set, three smartphones, and two identification cards were also found on the plane.
Moreover, in recent times, the grant and refusal of bail have evoked much criticisms and even controversies in the public domain. A few months ago, in a letter to the press, the Attorney General expressed the view that the grant of bail by certain Magistrates was highly irregular and not in accordance with the relevant legal principles. Nandlall had indicated that the State would challenge some of these decisions.