AG rips into affidavit supporting application for Mohamed’s bail
-hearing set for November 23
Opposition Leader Azruddin Mohamed will remain behind bars at the Lusignan Prison as the High Court prepares to rule on November 13 on an application by Attorney General Anil Nandlall SC to strike out large portions of his mother’s affidavit, while the substantive hearing challenging the refusal of bail has been fixed for November 23.
The development came during yesterday’s proceedings before Justice Priscilla Chandra-Hanif, where attorneys Roysdale Forde SC and Siand Dhurjon challenged the Attorney General’s objections to the affidavit filed by Mohamed’s mother, Bonita Mohamed, and secured permission for the Opposition Leader to personally provide additional sworn evidence.
The Court ordered that Mohamed’s affidavit be filed by 6 p.m. yesterday and directed the Guyana Prison Service to facilitate access by his attorneys to allow the document to be prepared and executed.
The defence has until November 6 to respond to the Attorney General’s Notice of Application, while Nandlall has until November 10 to file a response, if necessary. Oral arguments are scheduled for November 12, ahead of the Court’s ruling on November 13.
The proceedings also brought renewed attention to Mohamed’s conditions of detention, with Justice Chandra-Hanif expressing concern over allegations that he is being subjected to approximately 23 hours of artificial lighting daily inside his prison cell.
The Judge indicated that such prolonged lighting was unacceptable and made it clear that while security arrangements may be necessary, Mohamed must not be detained under circumstances that are oppressive.
During the hearing, Nandlall presented a photograph purporting to show Mohamed’s cell at the Lusignan Prison. However, Justice Chandra-Hanif, who indicated that she had not personally visited the prison in some time, requested that the defence also provide photographic evidence of the cell for comparison.
The request came amid conflicting accounts of the conditions under which the Opposition Leader is being held, with his family alleging that he is being subjected to solitary confinement, extreme heat and prolonged artificial lighting.
Speaking to reporters following the hearing, Forde accused the Attorney General of attempting to delay the determination of Mohamed’s bail challenge by filing a Notice of Application seeking to strike out portions of Bonita Mohamed’s supporting affidavit.
“He [the Attorney General] has sought to circumvent our application by filing a NOA challenging what Mrs. Mohamed would have said as hearsay,” Forde said.
“Now this is a court, lawyers have tactics, Mr. Nandlall is entitled to take those tactics to seek to delay the matter. He is entitled to do so and we have taken our position that we do not agree that the matter is hearsay,” the Senior Counsel added.
Forde maintained that the Civil Procedure Rules empower the Court to administer justice by examining the substance of a dispute rather than allowing procedural objections to prevent the matter from being heard.
He explained that the defence had offered to have Mohamed personally swear to an affidavit addressing the issues raised in the proceedings, even while maintaining that his mother’s original affidavit was admissible.
“So, in the event Mrs. Mohamed’s Affidavit constitutes hearsay, we have told the Court that by today, we will have an Affidavit, which will be unobjectionable by Mr. Azruddin Mohamed,” Forde stated.
Both Forde and Dhurjon informed the Court that they were prepared to respond to the Attorney General’s application within 24 hours and indicated that Mohamed could personally provide evidence concerning matters within his knowledge.
Justice Chandra-Hanif subsequently granted leave for the Opposition Leader to file the additional affidavit and directed prison authorities to facilitate access by his attorneys.
The Attorney General has strongly criticised the affidavit sworn by Bonita Mohamed, describing it as fundamentally defective and arguing that it contains extensive hearsay, legal opinions and allegations unsupported by firsthand knowledge.
Nandlall said the affidavit contains 146 paragraphs, but in his assessment, only approximately six comply with the rules governing admissible affidavit evidence.
“The affidavit has 146 paragraphs. Maybe six is proper. 140 will go,” he declared.
Nandlall explained that affidavits must contain admissible factual evidence upon which a court can act, rather than legal conclusions, unsupported assertions or matters outside the personal knowledge of the person swearing the document.
“A court can only act on evidence. And act on legal principles,” he said.
The Attorney General argued that Bonita Mohamed had acknowledged receiving much of the information from her son, raising questions about whether she could personally attest to the matters contained in the affidavit.
According to Nandlall, the document also addressed technical legal questions despite its author not professing any legal training.
He further challenged the basis upon which she described Mohamed’s prison conditions, the circumstances of the October 12 shooting incident and allegations involving Magistrate Abigail Gibbs.
The Attorney General said Bonita Mohamed had not personally visited the prison cell and therefore could not provide firsthand evidence of its physical conditions.
He also questioned how she obtained knowledge of the alleged relationship between Magistrate Gibbs and a police officer connected to the investigation.
Nandlall described the document as one of the worst affidavits he had encountered, calling it a “legal deformity”.
He maintained that if the Court removed the paragraphs he considers inadmissible, the remaining evidence might be insufficient to sustain the application.
Nandlall also criticised Mohamed’s attorneys for not withdrawing the application and filing a fresh one supported by what he considered proper affidavit evidence.
He maintained that the supplementary affidavit to be filed by Mohamed would not automatically cure any defects in his mother’s original affidavit.
According to the Attorney General, the Court must determine his application to strike out the challenged material before the State can properly identify the case it is required to answer.
During yesterday’s hearing, Nandlall also objected to the limited time afforded to the State to respond to the proceedings.
He pointed out that the urgent Fixed Date Application was filed on Monday, November 2, and served on the respondents on Tuesday, leaving approximately 24 hours before the scheduled hearing.
The Attorney General maintained that the allegations raised against the Guyana Police Force, Guyana Prison Service, Magistrate Gibbs and other State authorities required proper responses based on instructions obtained from the relevant agencies.
“Justice rushed is justice crushed,” Nandlall warned.
He argued that the urgency of a case involving personal liberty did not eliminate the need to comply with procedural rules or provide respondents with a fair opportunity to answer allegations.
Meanwhile, Mohamed’s treatment at the Lusignan Prison has become another significant issue in the proceedings.
In her sworn affidavit, Bonita Mohamed alleges that her son is being held in solitary confinement in a poorly ventilated cell, exposed to extreme heat and smoke and fumes from a nearby dumpsite.
The application also raises concerns about restrictions on his movement and interaction with other persons, along with allegations that artificial lighting remains on for approximately 23 hours daily.
Justice Chandra-Hanif expressed concern over the reported lighting arrangements and indicated that keeping a prisoner under such conditions was unacceptable.
The Judge also addressed the distinction between legitimate security measures and arrangements that could amount to oppressive treatment.
While acknowledging that security considerations may influence where a prisoner is housed, she made it clear that Mohamed should not be subjected to oppressive detention conditions.
Following the hearing, Nandlall rejected allegations that Mohamed was being subjected to inhumane treatment, saying the Guyana Prison Service had repeatedly disputed those claims.
The Attorney General said photographs of Mohamed’s cell had been supplied to him by the Director of Prisons and indicated that the images would be included in the State’s affidavit evidence.
He also maintained that the prison facility was constructed in accordance with international standards, referring to the United Nations’ Nelson Mandela Rules, which establish minimum standards for the treatment of prisoners.
Nandlall argued that Mohamed’s status as a high-profile prisoner required appropriate security arrangements.
He rejected suggestions that Mohamed should automatically be placed among the general prison population, maintaining that prison regulations and protocols govern decisions concerning the placement of prisoners.
The Attorney General also disputed claims that Mohamed had been denied meaningful access to relatives and legal representatives.
He said that he had spoken with a prison official who confirmed that Mohamed had identified three persons he wished to receive as visitors and that those individuals had been permitted to visit.
Nandlall further said that Mohamed was receiving meals supplied by designated relatives and that his attorneys had visited him at the prison for approximately two hours on Sunday.
He criticised the defence for not using that opportunity to prepare the affidavit now being required by the Court.
The Attorney General also questioned why a separate constitutional application specifically challenging alleged cruel or inhumane treatment had not been filed.
He maintained that such allegations would have to be supported by sworn evidence and warned of possible legal consequences for knowingly making false statements under oath.
Nandlall stressed that although prisons must comply with applicable standards, they are not intended to provide hotel-style accommodation.
“At the end of the day, it is a prison,”.
The High Court proceedings arise from an urgent application filed by Bonita Mohamed challenging Magistrate Gibbs’ October 30 decision to refuse her son bail in a cybercrime matter.
The application alleges that Mohamed was denied a fair and impartial bail hearing.
Mohamed and Police Constable Ryan Greene were jointly charged on October 30 in connection with the alleged unauthorised obtaining and disclosure of surveillance footage relating to the October 12 shooting incident outside Narine’s residence.
Both men pleaded not guilty and were remanded to prison until November 24.
The surveillance footage had previously been presented by Mohamed during a press conference, where he displayed several angles of the incident and maintained that the recordings supported his account of what transpired.
The October 12 incident also resulted in separate charges of unlawful possession of a firearm, unlawful possession of ammunition and attempting to obstruct the course of justice against Mohamed and two other men, Eugene Thorne and Mario Mohamed.
They were granted bail in those proceedings on October 16.
Mohamed and his father, Nazar Mohamed, are also facing separate extradition proceedings arising from a request by the United States.
On Monday, November 2, Chief Magistrate Judy Latchman declined a prosecution application to revoke Mohamed’s bail in the extradition matter.
The Magistrate found that the existence of separate pending criminal charges was insufficient, without more, to justify revoking his bail in those proceedings.
However, that decision did not secure his release because he remains remanded in the separate cybercrime matter.
Source: Kiskadee Watch
