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Thursday 21 March 2019
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No-show cop gets away

Judge slams magistrate’s arrest order

Justice Ricky Rahim
Justice Ricky Rahim

A HIGH Court judge has quashed the decision of a magistrate to issue a warrant of arrest for a policeman after the officer failed to go to court for a case in which he is the complainant.

Constable Dale Makoonsingh of Five Rivers, Arouca, did not go to court on November 29 as the officer who charged three people for unlawful possession of ammunition and marijuana. PC Makoonsingh, who is assigned to the Guard and Emergency Branch, in his lawsuit, filed in response to the arrest order, said that he had mixed up the dates for his appearance in court.

Justice Ricky Rahim on Thursday ruled that the decision of magistrate Aden Stroude to issue the warrant was “irrational and disproportionate,” based on the evidence. Stroude was in court for the ruling.

The judge, who ordered the defendant to pay Makoonsingh’s legal costs, referred attorneys to the Magistrates Protection Act which was assented to on March 7.

According to the amendments to the act, no action shall be brought against a magistrate for any act done in the execution of their office and can only be maintained where it is alleged and proved that the act was done “maliciously and without reasonable and probable cause.”

Makoonsingh’s attorneys Jagdeo Singh and Kiel Taklalsingh had argued that the magistrate unlawfully issued the warrant for their client’s arrest.

Makoonsingh said that on December 11, he received a telephone call from WPC Ross of the Court and Process Branch at the Morvant Police Station, telling him she had a warrant for his arrest because he did not go to court on November 29, 2017. He was told to surrender or he would be forcibly arrested.

Makoonsingh said on December 14, he went to court, was detained by police there and taken before a magistrate.

In his ruling, Rahim repeated the sequence of events which led to Stroude issuing the warrant, pointing out that judges in the high court and appellate court have, over the years, commented on the “perennial absence of complainants in summary matters before the magistrates courts and its effect on the delivery of justice.”

Makoonsingh, according to the evidence, the case before Stroude was called 70 times prior to November 29, 2017, and the policeman absent on 43 occasions because of injury leave, election duty and sick leave. When the matter was set for trial, of the ten times it was called, Makoonsingh failed to appear four times.

Rahim pointed out that the policeman provided no information or excuse to the court for his absence that day, but said no where in his reasons for issuing the warrant or his evidence in the lawsuit, did he say if he considered Makoonsingh had willfilly avoided attending court.

He said this was a crucial guiding factor when decided whether to issue a warrant of arrest.

“This was particularly so since the history of the proceedings demonstrated that the claimant had in fact appeared for more than half of the times when the matter was called and had on previous occasions been on extended period of sick leave. The omission of the magistrate has therefore deprived the claimant of procedural fairness in the context of this case,” the judge said,

“The recognition of the importance of the fundamental right of liberty and the right not to be deprived thereof through due process of law, similarly requires that the courts adopt a proportional approach when making a decision as to whether an individual ought to be deprived of his liberty. “

Rahim said there were two options available to the magistrate – he could have issued a summons for the policeman or issue a warrant as he did.

“However, the judicial exercise of the discretion as to which option to elect must be founded upon the principles of proportionality. The judicial officer ought to consider whether the use of force to bring the witness before the court is to be preferred over the less rights intrusive option of deprivation of liberty. There must be a measured consideration of the all of the factors and the judicial officer must be in a position to justify his choice. It may well be that in certain circumstances it is proportionate to issue the warrant as opposed to issue a summons but those circumstances may well be in the exception.” the judge found.

Makoonsingh did not succeed on his claim for compensation, however, as the judge found that Stroude had the power to issue the warrant, and was therefore protected from the lawsuit.

“Had the defendant been the Attorney General the position may have been different,” Rahim said.

“In closing the court wishes to underscore that it appreciates the unenviable burden placed on the magistrate in this case having regard to the fact that the matter was called some 70 times and it may well have appeared that the process of trial was once again being defeated. In the context of the very onerous lists that magistrates must navigate on a daily basis the failure to consider such an important factor may occur.

“It is perhaps worthy of consideration that a magistrate when faced with such circumstance pauses and stands the matter down in order to digest and consider the proper way forward so as to avoid any unintentional circumstances,” the judge advised.

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