Misconduct in public office: PI into charges against Roxanne Myers to proceed

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A ruling rendered on Wednesday by High Court Judge Franklin Holder has essentially cleared the way for Senior Magistrate Leron Daly to proceed with a Preliminary Inquiry (PI) into the two counts of misconduct in public office against former Deputy Chief Elections Officer (DCEO) Roxanne Myers.

It is alleged that between March 4 and 14, 2020, at High and Cowan Streets, Kingston, Georgetown, without any reasonable excuse or justification, Myers wilfully misconducted herself, together with former Region Four Returning Officer Clairmont Mingo and others, to declare a fraudulent account of votes for the Regional and General Elections of March 2, 2020, the said misconduct amounting to a breach of the public’s trust in the office of the said Returning Officer.

In February, Magistrate Daly ruled that a Preliminary Inquiry (PI) would be conducted into the charges against Myers, to determine whether there is sufficient evidence to warrant a jury trial at the High Court.

In so doing, the Magistrate upheld submissions by Myers’s lawyer Nigel Hughes, who submitted that given the gravity of the offence, the charges against his client should remain indictable and proceed by way of a PI.

Prosecutors, however, had opposed the lawyer’s request.

Special prosecutors in the matters submitted that they were satisfied with the penalty the offences attract at the Magistrate’s Court, and in light of the criminal justice system working slowly, requested that the matters be tried in the summary court, which, according to them, would see the case finishing faster.

One of those prosecutors, Attorney-at-Law Donavan Rangiah, deposed that the criminal justice system functions slowly, especially as it relates to jury trials, and this is now worsened by the COVID-19 pandemic.

He said that there are presently over 350 matters awaiting trial in the Demerara High Court, and with the current pace of trials, it is unlikely that the charges against Myers would be heard within the next four years. As such, the lawyer said he was satisfied that the penalty available to a Magistrate upon a conviction is a maximum of one year’s imprisonment, and not the common law maximum.

The DPP Shalimar Ali-Hack, SC, had filed judicial review proceedings in which she sought an order of certiorari quashing the Magistrate’s decision on the ground that it was irrational, unreasonable, arbitrary, ultra vires, without legal foundation, contrary to natural justice, and without legal authority.

Rangiah’s submissions had formed part of the DPP’s application. However, Justice Holder dismissed the DPP’s application, having found that there was nothing unlawful about the Magistrate’s ruling, since he was of the view that it was in keeping with the relevant laws and the Magistrate’s discretion.

Among other things, the DPP had asked the court for an advisory declaration that, in the circumstances of the charges, and in compliance with the Constitution of Guyana and a fair trial, the charges against Myers should proceed summarily. In her application, the DPP deposed that Magistrate Daly, in her oral reasons, said the charge against the former DCEO was serious and should be heard indictably.

The DPP said the Magistrate likened the offence for which Myers is charged to that of armed robbery and theft, as far as the court’s sentencing powers are concerned. According to Ali-Hack, Magistrate Daly also expressed concerns about the maximum penalty that could be imposed by the Magistrate’s Court, and effectively stated that the summary court is not able to punish adequately for the offence.

The DPP contended that Magistrate Daly’s decision engages Article 144 of the Constitution, with the likely result that the case may not be tried within a reasonable time.

In arriving at her decision, the DPP contended that the Magistrate failed to consider that the High Court could impose no greater penalty than the Magistrate’s Court on any conviction for the offences charged, and erroneously proceeded on the basis that the High Court could, in certain circumstances, impose a greater penalty than the Magistrate’s Court.

She argued further that the Magistrate failed to consider that the right to a fair hearing within a reasonable time is for the benefit of both the prosecution and defence. The DPP argued, too, that Magistrate Daly failed to consider and/or failed to take into account that the resources of the State would be better utilised by the expeditious hearing and determination of the charges against Myers.

Against this backdrop, Ali-Hack contended that the “decision by Magistrate Daly offends Article 144 (1) of the Constitution, which provides that all criminal cases should be afforded a fair hearing within a reasonable time.”

A team of special prosecutors has been hired to prosecute the electoral fraud cases against former Chief Elections Officer (CEO) Keith Lowenfield, Myers, Mingo, GECOM clerks Denise Bob-Cummings and Michelle Miller, GECOM Elections Officer Shefern February, and Information Technology Officer Enrique Livan; APNU/AFC activist Carol Joseph, and People’s National Congress Reform (PNCR) Chairperson and former Public Health Minister Volda Lawrence.

The more than 25 matters are currently before three Magistrates – Chief Magistrate Ann McLennan and Magistrates Sherdel Isaacs-Marcus and Leron Daly.

Lowenfield’s report claimed that the APNU/AFC coalition garnered 171,825 votes while the PPP/C gained 166,343 votes. How he arrived at those figures is still unknown. The certified results from the recount exercise supervised by GECOM and a high-level team from the Caribbean Community (Caricom) pellucidly showed that the PPP/C won with 233,336 votes while the coalition garnered 217,920.

The recount exercise also proved that Mingo heavily inflated the figures in Region Four – Guyana’s largest voting District – in favour of the then caretaker APNU/AFC regime.