Belmont landscaper loses SoE bail challenge

A Belmont landscaper has lost his challenge against the decision of the deputy chief magistrate to deny him bail on ammunition charges.

Justice Joan Charles dismissed Afiba Guerra’s judicial review claim on February 7.

Guerra filed a judicial review application challenging a decision by acting Deputy Chief Magistrate Brian Dabideen to deny him bail under the Emergency Powers Regulations, 2024. He sought to have Dabideen’s decision, made on January 13, quashed and remitted to another magistrate for fresh consideration.

In deciding the case, Charles said Guerra did not meet the high threshold test of irrationality.

“The court does not consider the magistrate’s decision was so irrational that a judicial officer would have come to a different conclusion.

“I do not consider that the magistrate’s decision was irrational nor was it illegal under the Bail Act.

“I do not form the view it was based on the regulations…The (police) prosecutor only referred to the regulations. The facts of the case met the requirements under the Bail Act.”

On the issue of costs, Guerra’s attorney Keron Ramkhalwhan asked the judge to either make no order for costs or make a wasted cost order against him. A wasted cost order compels an attorney to pay the costs incurred by a party for conduct that caused unnecessary legal expenses.

Charles refused, saying while she would make a significantly reduced-cost order she would not for a wasted-cost order.

“This is not a case where you had no reason to bring the case.” She said the magistrate did not specify which sub-section of section 6(2) of the Bail Act he considered and ought not to have raised the issue of a judge in chambers.

She ordered Guerra to pay one-tenth of the magistrate’s costs to be assessed by the registrar.

In earlier submissions, Ramkhalwhan argued that the magistrate made his finding with no evidence.

“That is the irregularity and unreasonableness of the decision.”

He said his client, charged under the SoE regulations, could not apply to a judge in chambers for bail afresh since that was prohibited nor could he apply to a judge in chambers for a review.

Ramkhalwhan took issue with the magistrate’s ruling, complaining that he failed to outline the grounds for refusing bail.

“Bail rulings must be clear, the grounds must be clearly stated,” he submitted.

He also urged the judge not to consider the magistrate’s affidavit evidence which outlined his considerations for denying bail.

In opposition, Rishi Dass, SC, representing the magistrate, said there was nothing wrong with a judicial officer giving reasons “after the fact.”

He said the magistrate was obligated to provide the basis, in law, for his decision.

“He did not change anything. He gave his reasons.”

Dass also pointed out that there was no objection to bail being denied under the SoE regulations at the hearing.

“A decision must be considered in context.” He took the judge through the Bail Act and the relevant sections that applied to the magistrate’s decision.

“Was he irrational in refusing bail when this person was charged with an offence while on bail?

“He is found with military-piercing ammunition that can only be used in a prohibited weapon while on bail on firearm and ammunition charges. “The magistrate is saying, ‘These are the factors I took into account’.”

Dass told the judge she had to be satisfied that the decision not to grant bail was not justified.

“It was obviously inherently justified. My friend fails on the irrationality threshold.

“When you look at the facts, it (the bail decision) falls on 6(2)(a) and it is beyond argument it falls under 6(2)(f) of the Bail Act).

“The magistrate’s reasons are impeccable. Nothing short of irrationality entitles the High Court to interfere with the magistrate’s decision.

“The claim should be dismissed.”

Dass also pointed out that Dabideen was no longer assigned to the Siparia district court so when Guerra’s matter resumes on February 10, it would be before a new magistrate.

“He also asked for the Forensic Science Centre report because he recognised if it came back, that would be a material change. That would be sufficient to reconsider bail.

“This judicial review claim was utterly misconceived. The magistrate acted properly and should not be criticised.”