A decision by Senior Magistrate Alex Moore to grant $3M bail each to Salem Nobrega De Alencar, and Andre Luiz Pereira – the two Brazilian nationals who are charged with trafficking close to 1000 pounds of cocaine – is being challenged in the High Court by Attorney General Anil Nandlall, SC. But although they were granted bail, De Alimser and Pereira remain in the custody of the State.
Although the men were granted bail on July 22, Nandlall said that they remain prisoners because if they are released, not only will they be a flight risk as they have no ties to Guyana but also upon their release, they will be perpetually violating several provisions of the Immigration Act.
De Alencar and Pereira have since filed Habeas Corpus proceedings in which they are asking the court to determine whether their detention is lawful.
De Alimser, 60, and Pereira, 30, were jointly charged with the offence back in May following the discovery of 535.8 kilogrammes of cocaine onboard a green and white Beechcraft Bonanza plane with registration number PT-SRR that crash-landed at Orealla, Corentyne River in Region Six (East Berbice-Corentyne).
At their first appearance before Magistrate Moore on May 27, the two men who were the pilot and co-pilot of the aircraft pleaded not guilty to the charge which alleged that they had the illicit substance in their possession on May 20. At that time, they were remanded to prison. However, in July, they were each granted bail after their respective lawyers renewed their bail applications.
The men reportedly told residents of Orealla that they were travelling and visiting several areas to do sport fishing and other leisure activities, but encountered difficulties with the weather.
They further claimed that the aircraft was almost out of fuel, and they had gotten lost after circling the area for some time. However, the men were subsequently accosted by Police ranks, who questioned them about their presence in the area. They then took the ranks to the aircraft, where a search conducted unearthed a quantity of cocaine. The estimated cost of the drug is $2.9 billion.
The Customs Anti-Narcotics Unit (CANU) had reported that from all indications, the aircraft was heading to Suriname. However, in addition to the 450 bricks of cocaine which each weighed one kilogram, two Global Positioning Systems, one radio set, three smartphones, and two identification cards, were found.
Investigations revealed that they had allegedly flown from Brazil to Venezuela and thereafter landed in Guyana without authorisation from the Civil Aviation Authority. Letters have since been dispatched to law enforcement agencies in Brazil, Suriname, and Guatemala to enquire the meaning of the abbreviation VTNO which was a label attached to the packages containing the cocaine found on the plane.
The Brazilians were also charged with entering Guyana illegally; they were each released on $50,000 bail. Despite, being granted their pre-trial liberty, they remain in prison.
The conditionalities of bail fixed by Magistrate Moore are that they lodge their passports with the court pending their trial, report to the East Ruimveldt Police Station on Mondays and Thursdays, and remain at the address on their lease provided by their lawyers.
Excess of jurisdiction
Nandlall, in judicial review proceedings, however, contends that Magistrate Moore acted in excess of his jurisdiction, unreasonably, irregularly, or improperly when he granted bail to the foreign nationals.
“There was a failure to satisfy or observe conditions or procedures required by law,” the Attorney General argues, adding that the Magistrate took into account irrelevant considerations when exercising his discretion to grant bail for the offence of possession of narcotics for the purpose of trafficking.
Specifically, he pointed to Section 94 of the Narcotic Drugs and Psychotropic Substances (Control) Act prohibits, which according to him, prohibits the grant of bail unless there are special reasons for so doing. In this case, Nandlall argues that no special reasons in law were proferred.
The Attorney General said that upon renewal of the bail application, Pereira’s counsel informed the court that his client may have contracted the COVID-19 virus, while lawyers for both of them claimed that their clients were assaulted by other prisoners.
Nandlall deposed that the Prosecutor pointed out that the allegations were not supported by medical or other evidence and it was the first time the Prosecutor was hearing of them. Having regard to these reasons, Nandlall added that the Magistrate “presumably” released them on bail.
In an affidavit in support of Nandlall’s application, Police Inspector Orin Joseph avers that the prisoners are foreign nationals and therefore a flight risk, and should they flee the jurisdiction, the State would be left at a severe disadvantage since it would have to expend time and resources to find the prisoner and to have him extradited for prosecution.
Concerning the offence of illegally entering Guyana, Nandlall deposes that releasing them on bail without them having a lawful status in Guyana them in a position where they are in perpetual breach of several provisions of the Immigration Act, Chapter 14:02, thereby perpetuating several criminal offences.
As such, Nandlall noted that the High Court has the power to review a decision of a Magistrate. He is, therefore, asking for the granting of a conservatory order staying and/or suspending the decision of Magistrate Moore to grant bail to the Brazilians until the judicial review application is determined.
The Attorney General said that this matter raises serious issues of law and is a matter of grave public importance. He moreover described the matter as the “whimsical, unlawful, capricious, arbitrary, and irrational exercise of the discretion of a magistrate in relation to the grant of bail.”
The Attorney General is ultimately seeking an order of certiorari, quashing the decision of Magistrate Moore to grant bail to De Alimser and Pereira for both offences. He submits that as a condition precedent to the hearing and determination of this matter, the orders preyed for are to be granted in the requirement of justice.
