‘Legal gymnastics’ as prosecution tries to re-instate murder charge 

A prosecutor, on Thursday, found herself performing what a defence counsel described as “legal gymnastics” as she tried to reinstate a murder charge against two men, just two days after another prosecutor reduced the charge to manslaughter. 

The development came in the case in which Javid Da Silva, 23, and a 16-year-old youth are accused of killing Da Silva’s brother, Sheldon Welch, 27, in Georgetown on March 2, 2023.

The duo allegedly dismembered Welch’s body and were assisted by Lisroy Bacchus in transporting it to Morne Garu Mountain, a charge for which Bacchus is indicted.

When the matter came up on Tuesday, counsel Grant Connell, who represents Bacchus, also appeared amicus on behalf of the teen.

Da Silva informed the court that he did not have a lawyer.

In light of the murder charge, Justice Brian Cottle, who presided along with Justice Rickie Burnett, appointed a lawyer to represent Bacchus under the country’s legal aid arrangements.

However, Crown Counsel Richie Maitland informed the court that the prosecution was reducing the charge from murder to manslaughter.

Da Silva and the teen each pleaded not guilty.

Bacchus had already been on bail and the court admitted Da Silva and the teen to bail under the same conditions.

They were each granted EC$20,000 bail with one surety and ordered to report to the Georgetown Police Station on Mondays and Thursdays between 6 a.m. and 6 p.m.

Further, the men were to surrender their travel documents and obtain permission from the court to leave the state. The court also ordered that stop notices be placed at ports of exit.

Connell had asked that the matter be shortlisted but the judge noted that there were other matters before the court in which bail had not been opened to the accused.

Neither Da Silva nor the teen were able to secure a surety.

However, their matter came up again in court on Thursday and as soon as it was called, Connell reminded the court that on Tuesday he had asked that the matter be short-listed.

The lawyer said this was because he was asking that the charge be put to the teen again. 

However, Justice Cottle asked Connell if he had seen the indictment. 

The lawyer responded that the prosecution had amended the last indictment.

However, the judge told him that since then, he had seen a document filed by the Director of Public Prosecutions, dated April 9, 2024.

The lawyer responded that that document was not before the court.

At this point, Crown Counsel Renee Simmons, who appeared for the Crown in the matter, said that the indictment that was filed on April 9 was served on the defendant and Connell’s chambers on April 10. 

Simmons said the matter had come up for arraignment on Tuesday and the Crown counsel with the conduct of the matter “erroneously reduced the charge from murder to manslaughter. 

“He had gotten this matter mixed up with another one for which he had a conversation with the learned Director [of Public Prosecution] about,” Simmons said, referring to Maitland.  

“On reducing the charge, counsel was not authorised to do so by the learned Director of Public Prosecution. It was an error. That was not his instructions,” Simmons said.

She told the court that on learning of the error, the Crown inquired and was informed that all defendants, on arraignment, pleaded not guilty to the reduced charge.

Simmons said her office found out that the men were still in custody and drafted a new indictment but could not file it on Tuesday because the High Court office was closed. 

She said that DPP had reindicted Da Silva and the teen for murder and Baccus for assisting offenders. 

“We are seeking to have the defendant arraigned on the new indictment,” Simmons said.

However, Connell said he had “looked at this bit of legal gymnastics and wondered if there was a significant change in the factual matrix that would cause the learned DPP to now seek to return to a charge which [the teen] was initially indicted and from indication of Mr. Maitland, which the court sought meticulous clarification”. 

Connell said he had even looked at Maitland while he was making the submission. 

“Counsel Maitland is a very complete counsel and I stand here as defence counsel in support of my learned friend. You cannot come to this court and say a counsel of that calibre misread a magnitude of this charge?”

‘highly prejudicial to the accused’

The lawyer further said that the court had asked if there was any objection to bail and there was none.

“If there is a voluntary bill of indictment, it is clear from 161 that if the learned DPDP sees therein facts that can make out another offence, she has the power to do a voluntary bill of indictment,” Connell argued.

“But to reduce a charge from murder to manslaughter and they are yet to withdraw the ones before the court, where do we stand in the indictment?”

The lawyer said it is “highly prejudicial to the accused”, adding that he had asked the court to shortlist the matter “for this very reason. 

“And in fairness to Mr. Da Silva, who was charged for murder, what my friend may not know is that that was put to him,” Connell said, adding that that is how the court had engaged one of the lawyers on the legal aid list.

“And the prosecution now informed the court that they are reducing the charge,” Connell further said, adding that in fairness to Da Silva, the prosecutor should have stood the matter down so that Da Silva could engage counsel to be advised and when manslaughter was placed on the book ,counsel could have advised him on what to do in relation to that charge.  

“That is the correct procedure,” Connell reasoned. 

“Da Silva said he cannot afford the lawyer. Lawyers were at the bar table. For this magnitude of offence. When they are called to the bar, you hear justice and justice comes and justice goes a begging and what you will do for justice. And all the lawyers disappear when the likes of Mr. Da Silva come before your court. That’s what is sad, very sad.

“And the prosecution is coming now to say it was an error. The legal injury was an error by competent counsel reading a brief and mixed up a brief of murder for something else.”

Connell said he did not think that the prosecution could succeed.

Justice Cottle said he had seen indictments amended but had never been confronted with a situation like the one before the court.

He noted that there had been an indictment and the prosecution made an application for an amendment. 

“I took the trouble to read the amendment myself rather than have the court clerk read it because I sensed there was some level of confusion. And so I asked carefully of counsel if this is what you want and I was told this was the amendment.”

Justice Cottle said that an amended indictment was put to the accused men and they pleaded not guilty.

“Now I am being told counsel was in error, that counsel had no authority from the learned director to act as he did. Be that as it may, that is an internal matter for the director and the director’s staff.”

The judge said that when someone appears before the court, he is bound to assume that they have full authority to conduct prosecution in the manner that they see fit. 

“So, can I, in the circumstances, without more, read this indictment to the accused men? I would like to be guided as to what the law says,” the judge told Simmons.

The prosecutor tapped on her computer as she said, she would like to so guide the court, but “unfortunately my computer just died”.

She asked that the matter be stood down.

DPP’s office places court in ‘conundrum’

However, Justice Cottle said that the prosecution would submit written arguments and then the court would consider whether or not the amendment can properly be there. 

“As it stands, we have an amendment before the court, we have pleas on the amendment, bail was open to the accused men. If you want me to revoke bail, you will have to do a little more,” the judge told the prosecutor. 

The judge allowed the prosecutor to inform the court and Connell of when her arguments are ready.

The judge said that in the meanwhile, he was making no other order. 

“The position as existed before continues. Bail continues to be open. Unless you show me otherwise, I really don’t see any way in which I can do otherwise…  Your department has placed the court in this conundrum,” the judge said.

He said that the DPP could do as she wished. “But can you indict someone and then decrease it and increase it again.”

Simmons said the conundrum would have occurred had the men pleaded guilty.

“In this case, all men pled not guilty,” she argued. 

The judge told Simmons that she should find the cases to support her argument and tell the court how it should handle the matter. 

He said that until he is offered such guidance, he was making to additional order in the case. 

The judge told the accused men he had nothing more to add than what he had said to them on Tuesday.

“If there is any change, the position would make their legal arguments, we will fix a date and we will come back to hear the arguments, and then I will be in a position to tell you if there is any change.”

Connell noted to the court that the defence has asked that the charge be put to Lewis. He noted that Da Silva is not represented, adding that he would ask the Bar Association to see if a lawyer could assist Da Silva.  

“My friend must understand that counsel was already appointed for Da Silva when instructions were carried out by learned counsel to inform the court.” 

The judge said there are certain disadvantages to the men based on the representation he got from the Office of the DPP.

Simmons asked if it was a matter that could be dealt with urgently once they have argument.

“As soon as you are ready, let us know and I will schedule a hearing…”