The office of the Director of Public Prosecution today withdrew a COVID-19 court case described as a “nullity” by a Magistrate and then re-lodged it.
As a result, shopkeepers Emma Ann Abrahim and Churaman Veerandra entered a fresh not guilty plea to the charge that they opened their business when it was supposed to be closed under the curfew directives. The offence allegedly occurred on February 8.
In the previous case, the two, who were initially unrepresented by legal counsel, had pleaded guilty and were remanded for 25 days pending sentencing. They were then granted bail by the High Court following an application by Michael Lashley Q.C., who was then retained.
Subsequently, the two re-appeared before Chief Magistrate Ian Weekes who was expected to sentence them. Instead, the couple made a request to change their guilty plea. The case was transferred to the District “C” Magistrates’ Court where Magistrate Elwood Watts has taken over responsibility for COVID matters.
During the initial appearance before Watts, Lashley outlined the “tainted proceedings” which led to a change of plea.
The lawyer said that the confused couple was dragged away to court the same day they were served and being unrepresented, pleaded guilty to the charge. Lashley also argued, and Magistrate Watts agreed, that the COVID-19 unit had acted beyond its powers by acting as prosecutors in the matter. The Magistrate, however, suggested that a change of plea would not help the case and suggested that the couple seeks to redress.
Today as the matter continued, Lashley said the DPP’s move to withdraw and then re-lodge the matter “indirectly or directly” admitted that the proceedings were “flawed”. He added that the re-lodging of the matter could not correct what occurred and he would be seeking substantial damages in a higher court.
The lawyer also objected to the new charge saying that the court had already convicted the couple and that the DPP could not now re-lodge a matter where a person was convicted. He also again sought to raise the issue of the COVID unit acting outside of its powers, not only in terms of acting as a prosecutor but in the way they were bringing persons to the court.
“Seems to me that the COVID unit wants to be a super-spreader of injustice,”
Magistrate Watts considered that “in totality, all that happened in law was a nullity” and that the effects of a nullity meant that the DPP could “re-lodge and start over properly”.
“Your redress is not for this court – this court does not address the effects of nullity,” Watts told Lashley.
“If a thing is a nullity, what prevents the DPP from at any point, beyond the beginning, from starting over? All that happened here is a nullity,” he added.
Principal Crown Counsel Krystal Delaney reiterated that it was the DPP’s intention to withdraw and they were only bound, in relation to the re-lodging, by the six-month statutory limitations.
In addressing Lashley’s argument that the couple was already convicted, Delaney referred to the case of Ramdaran et el v The Queen.
In that case, the convict is defined as a guilty plea or finding plus a sentence.
“Based on that case they had not been convicted. They pleaded guilty and were remanded pending sentence. The fact that they have not been sentenced means that they have not been convicted and therefore that does not preclude the DPP’s office from re-lodging on the same facts,” she said.
Delaney agreed that the unit could not prosecute but said that providing information was ancillary to the unit’s powers and monitoring was the best way to provide information in relation to any breach.
The magistrate said given all that had transpired, the court was “minded to be aware of all that and if you are found guilty the court would reprimand and discharge and it will not amount to a conviction”.
The trial date is set for May 7.