A MAN awaiting trial on a charge of murdering a State witness has been released from prison due to a clerical error while his co-accused has to face trial.
The error cannot be retracted.
Last Friday, Justice Malcolm Holdip permanently blocked the State from proceeding against murder accused Anthony "Tonic" Amogan on the basis of a 15-year delay to bring him to trial.
But attorneys for another man, Michael "Wolf" Ramdawar, also charged with the same crime, want the judge to revisit his decision to allow their client to also walk free.
Amogan and Ramdawar were jointly charged with the murder of Ramcoomar Ramoutar, who was shot dead on February 22, 1997. They were convicted for the crime in 2003 but were granted a retrial in 2006.
In his written ruling delivered last Friday, Holdip found that the delay between 1997 and 2006 does "not suggest delay that is unjustifiable".
"At common law, even where delay is unjustifiable (which in this case it is not) a stay is only granted as exceptional circumstances, and even more rarely where there had been no fault on the part of the complainant or the prosecution," the ruling stated.
In the paragraph that followed, the judge stated that the period of delay of 15 years and nine months "is significant and holds that the delay is unjustified".
"Therefore, in considering all the circumstances of the case in addition to the period of delay, I hereby grant the stay of the indictment for the first named applicant (Amogan) as in this court's view the accused cannot receive a fair trial as prejudice arises in the circumstances."
Holdip also stated that both applicants "were unable to demonstrate actual prejudice that would render their trial unfair".
The judge went on to dismiss a similar claim in relation to Ramdawar, saying that he was of the view that "the accused would receive a fair trial in the circumstances".
But shortly after his ruling, the judge recalled the matter saying that he "may have unwittingly not recognised the fact that the second named applicant adopted all the grounds of the first applicant".
He then called on both the prosecuting and defence attorneys for their views on whether he could reconsider the second part of his ruling and adjourned the matter to yesterday.
In court yesterday, Israel Khan SC, lead defence attorney for Ramdawar, submitted that the judge still had conduct of the matter even though he had delivered his decision and said his client should have also benefitted for a permanent stay of his indictment.
He told the judge that he should not "allow rules to humbug justice" and his client should not be a "sacrificial lamb".
Khan said if there was a mistake in the ruling, judges were only human.
"We are not asking for a verdict, we are asking for a stay of these proceedings and that stay can't be resurrected by the DPP," said Khan.
In response, Deputy Director of Public Prosecutions, Kathy Ann Waterman-Latchoo, said there was an error in the initial ruling but not the one Khan was embracing.
"As unfortunate as it was that a clerical error led to his release because there was in fact an error and it cannot be cured...Whatever has to be said or done cannot be determined by this court," said Waterman-Latchoo.
She referred to several paragraphs of Holdip's ruling to support her submission.
She also stated that the law was an amalgamation of rules and that the court no longer had jurisdiction in the matter.
"There is no retreat," she said.
The judge has adjourned the matter to January 18, when he will give his decision on whether he still has jurisdiction to revisit his earlier ruling.