…High Court refuses pre-sentence bail application, as prosecution sides with defence in challenging magistrate’s ruling
(Kaieteur News) – High Court judge, Justice Joy Persaud has dismissed an application for judicial review brought on behalf of head of border patrol, Daniel Seeram, ruling that the decision of Magistrate Abigail Gibbs to refuse him bail following his conviction was neither unlawful nor irrational.
The ruling comes six months after Seeram’s appointment to lead the national border patrol unit and follows his conviction for assault causing actual bodily harm under Section 49 of the Criminal Law (Offences) Act.
Convicted wife beater, Daniel Seeram
Delivering the decision, Justice Persaud stated on Monday, that the application failed to meet the legal threshold required for judicial review, relying on long-standing legal precedent to ground the court’s position.
“This court finds that the application before it has not met the criteria for judicial review,” Justice Persaud declared. Citing former Chief Justice Chan in the Sherwin Samson case, Justice Persaud noted that the test “is not whether the court agreed with the decision which the magistrate reached, but whether their decision was so plainly rational and untenable that no reasonable bench of judges properly directed could have reached it.”
“The court finds no indication that the magistrate acted unlawfully, irrationally, or outside of their jurisdiction,” Justice Persaud ruled. “Accordingly, the application for judicial review is dismissed.”
Defence counsel Nigel Hughes, representing Seeram, challenged the legal basis of the magistrate’s post-conviction orders, contending that the court had pre-judged the case. Hughes pointed out that after finding Seeram guilty, the magistrate ordered a probation report, a victim impact statement, and submissions on mitigating and aggravating factors ahead of a formal sentencing date set for 2nd November. However, by remanding Seeram to prison in the interim, Hughes argued the magistrate effectively imposed a custodial sentence before holding the required sentencing hearing.
“It would have been on the assumption that those matters would have been considered before the pronouncement of the sentence,” Hughes said. “The court made a finding and said effectively imprisonment while waiting on the matters that the court ought to contemplate before sentence. So, it’s a clear bias by the court. I am putting you in prison even though I haven’t heard mitigation.”
Hughes further asserted that summary magistrates lack the statutory power to remand an accused person purely awaiting sentence, as opposed to remanding on a pending charge. He noted that high court judges possess original jurisdiction that allows pre-sentence remand, whereas magistrates are bound strictly by statutory provisions such as the Summary Jurisdiction (Procedure) Act, which contains no such mechanism.
He also criticised the magistrate’s reliance on Section 9 of the Bail Act, emphasising that Section 9 applies strictly to convicted persons who have already filed an appeal against conviction or sentence. Because no appeal had been lodged prior to sentencing, Hughes maintained Section 9 was wholly inapplicable and that the standard bail criteria under Section 7, such as flight risk, risk of reoffending, or witness tampering, were never established. “There was no issue of failing to surrender to custody… no suggestion at all that he was likely to commit an offence while on bail,” Hughes submitted, noting that Seeram had consistently attended all court dates and maintained significant national responsibilities.
Deputy Solicitor General Shoshanna Lall, appearing for the state, agreed with the defence that the magistrate had fallen into grave legal error, even while acknowledging the narrow scope of the judicial review application before the high court. Lall addressed that while the state recognises domestic violence as a serious and prevalent issue in Guyana and accepts Seeram’s conviction, the magistrate misconstrued the statutory penalties under Section 49.
Lall pointed out that Section 49 states an offender is “liable to imprisonment for five years,” which establishes a maximum penalty rather than a mandatory custodial sentence. She cited Section 37 of the Summary Jurisdiction (Procedure) Act, which explicitly grants magistrates the power to impose a fine in lieu of imprisonment where the justice of the case warrants it.
“She has basically provided and confirmed that she has [proceeded to] sentencing pursuant to Section 49 and she didn’t think that the requirements of Section 9 of the Bail Act were met,” Lall submitted. “We respectfully say that she fell into grave error when she determined that the offence mandated a mandatory term of imprisonment.”
Lall argued that placing Seeram in prison prior to reviewing the probation report and hearing mitigating factors effectively predetermined a custodial sentence, running counter to Caribbean Court of Justice (CCJ) jurisprudence, including Pompey v. HPP and Tran v. HPP, which mandates a meaningful sentencing hearing before a court locks in a custodial outcome.
Lall added that because Seeram complied with all pre-trial bail conditions and posed no demonstrable flight risk, there was no evidential basis to disrupt the status quo by remanding him prior to sentence. Despite the shared arguments from both defence and prosecution highlighting the magistrate’s procedural errors, Justice Persaud’s ruling stands, the high court declined to intervene through judicial review, leaving the magistrate’s refusal of bail intact ahead of Seeram’s upcoming sentencing date.
Source: Kaieteur News
