DID the blunder by the Office of the Director of Public Prosecutions (DPP) in laying gang charges against 13 people, some of whom are also charged with the murder of former Independent senator Dana Seetahal, SC, result in a nullity of the charges?
And can the charges now be amended?
Appellate court judges Alice Yorke-Soo Hon and Mark Mohammed have asked attorneys for the State for assistance in answering these question.
The State has appealed the decision of the magistrate to dismiss the charges against former LifeSport co-ordinator Rajaee Ali and nine others.
Thursday’s hearing of the magisterial appeal was not heard in one of the two appeal courts on the third floor of the Hall of Justice, Port of Spain, but in the Third Criminal Court on the first floor.
Three of the 13 before the court on the gang charges were absent. The judges were told one of the men, Stephen Cummings had turned state witness against the others and David Ector was killed in July last year. Deon Peters did not appear.
Peters and Ector were both freed of the gang charges, as they were not charged with Seetahal’s murder. The gang charge against Ali and his wife was not dismissed, since Ali was charged with being a gang leader and his wife Stacy Griffith was charged with benefitting from the gang’s activity.
The appeal of the magistrate’s decision was the result of her dismissing an application by the State to amend the gang charges against the 13 after the DPP’s Office admitted to laying the charges indictably (to be tried by judge and jury or judge alone after a preliminary inquiry) as opposed to summarily (heard and determined by a magistrate) for first offenders, as prescribed by the Anti-Gang Act.
In May 2016, Senior Magistrate Indrani Cedeno said the amendment could not be permitted, as she felt the accused would be prejudiced by it.
At the time, it was also argued that the DPP’s Office could not now re-lay the charges because the six-month window to do so had already expired.
After hearing submissions from special prosecutor Travers Sinanan and defence attorney Mario Merritt, the judges said they need further assistance on three issues: When is a charge considered a nullity? When can an amendment to the charge be made, and must it fall within a specific statutory period? And can the charge now be amended to a summary charge?
In his submissions, Sinanan argued that it was a continuous offence, which started on July 14, 2014 and ended on July 24, 2015. He said the six months ran from the latter date.
He also submitted that the accused had to prove they would be prejudiced by an amendment to the charges, adding that there was no change to the evidence, only the way in which they were charged.
“Changing the charge from indictable to summary doesn’t take away from the substance of the charge,” Sinanan argued, adding that it was a procedural issue that was not fatal to the accused.
“It cannot be a nullity,” he said.
However, Merritt countered that it could not be a mere technicality.
He said the charges could not now be converted, since the law was clear: a first-time offender must be summarily charged.
“Had this matter gone further, could they have been committed to stand trial or convicted? It is a nullity,” he maintained.
“It is defective not only in form ,but also substance,” he added.
Seetahal was shot dead behind the wheel of her SUV while driving along Hamilton Holder Street, Woodbrook, on May 4, 2014, as she was returning home from an Ariapita Avenue casino.
Before the court are Ali and his brothers Ishmael and Hamid Ali, brothers Devaughn and Stephan Cummings, Ricardo Stewart, Earl Richards, Kevin Parkinson, Leston Gonzales, Roget Boucher, and Gareth Wiseman, charged with her murder, and gang charges.
Sinanan and Merritt were given directions for the filing of submissions on the issues the judges raised. The judges said if they need to hear from the attorneys again they will schedule another hearing date. Otherwise they will notify attorneys on the date they will give their decision.