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Friday 21 September 2018
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Magistrate ordered to reconsider warrant

UPDATE:

A magistrate who refused to recall a bench warrant she issued for an accused when he failed to show up in court has been ordered to re-hear the application for the withdrawal of the warrant.
Justice Frank Seepersad made the order yesterday.

He also declared that the decision of Magistrate Adia Mohammed to dismiss Winston Sutton’s application to have the arrest warrant withdrawn was fundamentally “flawed, restrictive and myopic.”

In a nine-page written decision, Seepersad held that the magistrate failed to take into account relevant and material considerations and paid insufficient regard to the overriding objectives of the Criminal Procedure Rules 2016 (CPR).
Sutton, who is before the court on a charge of grievous sexual assault, failed to appear in court on November 7, 2017, when his matter was recalled.

A bench warrant was issued for his arrest, but Sutton and his attorney, Wayne Sturge, went to court on November 9, and said there was a mix-up on their part of the adjourned date for the case. An application was made for the warrant to be withdrawn, but the magistrate refused, saying if she did so it would open the floodgates for abuse.

She also said in her view, section 5.4(2) of the CPR should be applied in situations where the warrant was issued unlawfully, as a result of an administrative error or where the accused arrived late on the stipulated day on which the warrant was issued.

The magistrate also said the failure of an accused to attend court not only affected the case but the court’s ability to administer justice and would also negatively affect the confidence of victims, witnesses and the public.
Sutton filed a judicial-review claim challenging the magistrate’s decision. He was represented by Joseph Sookoo and Delicia Helwig-Robertson.
In his ruling, Seepersad appreciated that before the rules, a magistrate had no statutory authority to recall a warrant, although such a practice was engaged.

He said in Mohammed’s case, she should have considered the reason for the non-attendance, since she had a discretion to do so.
“If, through genuine human error and/or due to unforeseen and/or uncontrolled circumstances, there was non-appearance on the appointed date, then justice and fairness may favour the recall of the warrant, the administrative issues associated with the recall of the warrant notwithstanding.”

He said once it was established there was no wilful reason for not attending court, the magistrate should have considered recalling the warrant and would still have been able to retain its control of the case.

“The views adopted by the defendant of the administrative hurdles with respect to the recall of warrants which had left the court office and that a withdrawal of the warrant would impact negatively upon the administration of justice, were flawed.”

Seepersad said while administrative constrains were relevant, they must always be assessed against fairness, efficiency and efficacy. He has also recommended an amendment to the CPR or the issuing of a practice direction on the recall of warrants for clarity.
The magistrate was represented by Rajiv Persad and Brent James.

ORIGINAL STORY:

A magistrate who refused to recall a bench warrant she issued for an accused when he failed to show up in court, has been ordered to re-hear the application for the withdrawal of the warrant.

Justice Frank Seepersad made the order yesterday. He also declared that the decision of Magistrate Adia Mohammed to dismiss Winston Sutton’s application to have the arrest warrant withdrawn was fundamentally “flawed, restrictive and myopic.”

In a nine-page written decision, Seepersad held that the magistrate failed to take into account relevant and material considerations and paid insufficient regard to the overriding objectives of the Criminal Procedure Rules 2016 (CPR).

Sutton, who is before the court on a charge of grievous sexual assault, failed to appear in court on November 7, 2017, when his matter was recalled.

A bench warrant was issued for his arrest, but Sutton and his attorney, Wayne Sturge, went to court on November 9, indicating there was a mix up by them of the adjourned date for the case.

An application was made for the warrant to be withdrawn, but the magistrate refused. She said if she did so it would open the floodgates for abuse.

She also said in her view section 5.4(2) of the CPR should be applied in situations where the warrant was issued unlawfully, as a result of an administrative error or where the accused arrived late on the stipulated day on which the warrant was issued.

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