Derek Achong

Se­nior Re­porter

derek.achong@guardian.co.tt

A land­scap­er from Bel­mont has chal­lenged the de­ci­sion of a se­nior mag­is­trate to de­ny him bail af­ter he was charged with pos­ses­sion of high-pow­ered am­mu­ni­tion ear­li­er this month.

In a ju­di­cial re­view ap­pli­ca­tion filed yes­ter­day, Afi­ba Guer­ra, through lawyer Keron Ramkhal­whan, claimed that act­ing Deputy Chief Mag­is­trate Bri­an Dabideen made er­rors when he re­fused to grant him bail last Mon­day.

Guer­ra, a 28-year-old fa­ther of two from Up­per St Fran­cois Val­ley Road, Bel­mont, was ar­rest­ed on Jan­u­ary 9 at Zachari­ah Av­enue, Thick Vil­lage, Siparia, af­ter po­lice of­fi­cers al­leged­ly found 8 rounds of 7.62 cal­i­bre am­mu­ni­tion in a house he was in.

The cas­ings for the am­mu­ni­tion all bore the mark­ing “VEN 75.”

He plead­ed not guilty to the charge.

While Dabideen de­nied him bail, he said he would re­con­sid­er the po­si­tion when Guer­ra reap­pears in court on Feb­ru­ary 10.

Dur­ing the hear­ing, Dabideen al­so re­port­ed­ly ques­tioned why Guer­ra was charged un­der Sec­tion 8 of the Emer­gency Pow­ers Reg­u­la­tions 2024 for the on­go­ing State of Emer­gency (SoE) and not un­der Sec­tion 6 of the Firearms Act. Dabideen point­ed out that the max­i­mum prison sen­tence for breach­ing the SoE reg­u­la­tions is five years while the max­i­mum sen­tence un­der the leg­is­la­tion is eight years.

Po­lice pros­e­cu­tors claimed the po­lice com­plainant in the case act­ed on the ad­vice of the T&T Po­lice Ser­vice’s (TTPS) Le­gal Unit.

In the law­suit, Ramkhal­whan claimed that Dabideen did not pro­vide rea­sons for his de­ci­sion and ap­plied the wrong tests un­der the Bail Act and SoE reg­u­la­tions.

“The fol­low­ing will demon­strate that the In­tend­ed Re­spon­dent (Dabideen) when giv­ing his de­ci­sion, mis­ap­pre­hend­ed the facts and/or law and/or he gave no weight to ma­te­r­i­al con­sid­er­a­tions and/or was in­flu­enced by mat­ters that should not have been con­sid­ered,” Ramkhal­whan said.

He ad­mit­ted that un­der the Bail Act, a mag­is­trate may de­ny bail if they are sat­is­fied there are sub­stan­tial grounds for be­liev­ing the ac­cused may com­mit an of­fence while on bail. He al­so ac­knowl­edged that Sec­tion 17 of the SoE reg­u­la­tions al­lows mag­is­trates to de­ny bail if they can rea­son­ably ap­pre­hend that the per­son would en­gage in the com­mis­sion of breach­es of the peace or crim­i­nal of­fences if re­leased.

Ramkhal­whan ad­mit­ted that Guer­ra had pend­ing charges for firearm and am­mu­ni­tion pos­ses­sion, re­sist­ing ar­rest, us­ing ob­scene lan­guage and pos­ses­sion of cam­ou­flage cloth­ing stem­ming from an in­ci­dent in No­vem­ber 2021. How­ev­er, he not­ed that his client main­tained his in­no­cence and had been wait­ing for al­most four years for pros­e­cu­tors to dis­close ev­i­dence to com­mence the case.

Deal­ing with the mag­is­trate’s al­leged fail­ure to give suf­fi­cient rea­sons, Ramkhal­whan said his client could not mount a chal­lenge or show a change in cir­cum­stances with­out such. He claimed that Guer­ra’s pend­ing mat­ters were not enough to war­rant the de­nial of bail un­der the two pieces of leg­is­la­tion.

“The ho­n­ourable court’s phrase­ol­o­gy sug­gests that it con­sid­ered that he was charged for a sim­i­lar of­fence al­leged to have been com­mit­ted while on bail, the type of am­mu­ni­tion found, and the na­ture and se­ri­ous­ness of the of­fence, how­ev­er, we state that is not the le­gal test for de­nial of bail,” he said.

“The in­tend­ed re­spon­dent was statu­to­ri­ly ob­lig­at­ed to con­sid­er whether the risks as­so­ci­at­ed with the grant of bail may have been mit­i­gat­ed with the im­po­si­tion of con­di­tions,” he added.

Ramkhal­whan al­so point­ed out that dur­ing his bail ap­pli­ca­tion, he stat­ed that Guer­ra was con­tend­ing he was framed by the po­lice, who plant­ed the am­mu­ni­tion with the help of a key wit­ness.

“Giv­en this se­ri­ous claim, the ap­pli­ca­tion for bail be­comes crit­i­cal,” he said.

“It’s not just about se­cur­ing free­dom, it’s about pro­tect­ing the in­di­vid­ual from un­just de­ten­tion that may be the re­sult of po­lice mis­con­duct—a pat­tern that has un­for­tu­nate­ly plagued T&T in the past,” he added.

Ramkhal­whan al­so sug­gest­ed that bail should on­ly be de­nied when tru­ly nec­es­sary and jus­ti­fied.

“It’s cru­cial that we do not mis­tak­en­ly equate the de­nial of bail with solv­ing or de­ter­ring crime,” he said.

Through the law­suit, Guer­ra is seek­ing de­c­la­ra­tions over the de­ci­sion. He is al­so seek­ing an or­der quash­ing the de­ci­sion and re­mit­ting the case to an­oth­er mag­is­trate to con­sid­er.

The case is sched­uled to come up be­fore Jus­tice Joan Charles next Mon­day.