Brazilians busted with cocaine: High Court suspends Magistrate’s $3M bail order

…after AG challenges decision

A decision by Senior Magistrate Alex Moore to grant $3M bail each to Salem Nobrega De Alencar and Andre Luiz Pereira – the two Brazilian nationals who are charged with trafficking 1100 pounds of cocaine – is being challenged in the High Court by Attorney General Anil Nandlall, SC.

These Brazilians have also been charged with entering Guyana illegally. They were each placed on $50,000 bail, but remain in prison. The conditionalities of bail fixed by Magistrate Moore are that they lodge their passports with the court pending their trial, report to the East Ruimveldt Police Station on Monday and Thursday, and remain at the address on their lease provided by their lawyers.

Although granted their pre-trial liberty on July 22, Nandlall said, they remain in prison because, if they are released, not only will they be a flight risk, as they have no ties to Guyana, but also, upon their release, they would be perpetually violating several provisions of the Immigration Act.

Bail order suspended

De Alencar and Pereira then filed Habeas Corpus proceedings in which they asked High Court Judge Sandil Kissoon to determine whether their detention was lawful. As such, Justice Kissoon granted an Order Nisi directed to Police Commissioner (ag) Nigel Hoppie for him to show cause why the duo should not be released from custody.
During a hearing on Wednesday, Justice Kissoon agreed with submissions proffered by the Attorney General that the men should remain in custody until the hearing and determination of the judicial review proceedings challenging the Magistrate’s decision to grant them bail.
In the end, the High Court Judge granted an interim order staying and suspending Magistrate Moore’s bail order pending the determination of Nandlall’s application. Further, the Judge discharged the Order Nisi in the Habeas Corpus application.

Crash-landed
De Alencar, 60, and Pereira, 30, were jointly charged with the offence back in May, following the discovery of 535.8 kilogrammes 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).

At their first appearance before Magistrate Moore on May 27, the two men, who were the pilot and co-pilot of the aircraft, pleaded not guilty to the charge which alleged that they had the illicit substance in their possession on May 20.
At that time, they were remanded to prison. However, in July, they were each granted bail after their respective lawyers renewed their bail applications.
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 have since been 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 kilogramme, two Global Positioning Systems, one radio set, three smartphones and two identification cards were also found on the plane.

Excess of jurisdiction
Nandlall, in judicial review proceedings, however, contends that Magistrate Moore acted in excess of his jurisdiction; unreasonably, irregularly, or improperly when he granted bail to the foreign nationals.
“There was a failure to satisfy or observe conditions or procedures required by law,” the Attorney General argues, adding that the Magistrate considered irrelevant considerations when exercising his discretion to grant bail for the offence of possession of narcotics for the purpose of trafficking.

Specifically, he pointed out that Section 94 of the Narcotic Drugs and Psychotropic Substances (Control) Act prohibits the granting of bail, unless there are special reasons for so doing. In this case, Nandlall argues, no special reasons in law were put forward.
The Attorney General said that, upon renewal of the bail application, Pereira’s counsel informed the court that his client may have contracted the COVID-19 virus, while lawyers for both men claim that their clients were assaulted by other prisoners.

No evidence
Nandlall deposed that the Prosecutor pointed out that the allegations were not supported by medical or other evidence, and it was the first time the Prosecutor was hearing of them. Having regard to these reasons, Nandlall added, the Magistrate “presumably” released them on bail.
In an affidavit in support of Nandlall’s application, Police Inspector Orin Joseph, who prosecuted the case, avers that the men are foreign nationals and therefore are a flight risk; and should they flee the jurisdiction, the State would be left at a severe disadvantage, since it would have to expend time and resources to find the prisoners and to have them extradited for prosecution.
Concerning the offence of illegally entering Guyana, Nandlall has deposed that releasing them on bail without their having a lawful status in Guyana puts them in a position wherein they are in perpetual breach of several provisions of the Immigration Act, Chapter 14:02, thereby perpetuating several criminal offences.
As such, Nandlall notes, the High Court has the power to review the decision of a Magistrate. The Attorney General has said that the challenge to a Magistrate’s order granting bail is unprecedented, and raises serious issues of law, and is a matter of grave public importance.
He, moreover, described the matter as the “whimsical, unlawful, capricious, arbitrary, and irrational exercise of the discretion of a Magistrate in relation to the grant of bail.”
The Attorney General is ultimately seeking an Order of Certiorari, quashing the decision of Magistrate Moore to grant bail to De Alencar and Pereira for both offences.
He has submitted that as a condition precedent to the hearing and determination of this matter, the orders prayed for are to be granted in the requirement of justice. (G1)