Op-Ed: Trials by Ambush

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Below in an opinion piece done by Attorney-at-Law and former Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall, MP:

The rule of law under the British legal system which we have inherited, recognizes the disparity between the state and the citizenry in the criminal justice process. A prosecutor, on behalf of the state, in a criminal legal process, stands with the might and all the resources of the state on his side, in a charge against an accused person. In order to bring greater equilibrium to this relationship, to ensure fairness and to avoid a miscarriage of justice, the Common Law and the Constitution have established a series of protective safeguards in favour of an accused person.

Over the years, judges have developed an additional regime of protection for an accused person and will stay or terminate prosecutions based on established principles on the ground that to allow it to proceed will result in “an abuse of process” of the court. One of the principles upon which the doctrine of abuse of process can be invoked, is where the state or the Executive exploits any advantage it has over the accused person.

Dr Ashni Singh and Winston Brassington

It is common knowledge that charges filed against Dr Ashni Singh and Winston Brassington in April 2018, are currently the subject of challenge in the High Court by proceedings pending before the Chief Justice (Ag.). In the interim, an order was granted by Justice Frank Holder, prohibiting the charges from going forward in the Magistrate’s Court, pending the hearing of the challenge before the Chief Justice.

Against this factual backdrop, one must question the motive which drove the institution of a new charge of the exact type against Singh and Brassington last week, which is the subject of challenge in the High Court. The fact that no attempt was even made to contact these persons or their attorneys-at-law or serve them with a summons, although the SOCU officers have all the contact information, must excite suspicion.

One of the grounds upon which the old charges are being challenged is whether it is fair and lawful for the prosecution of an offence in relation to transactions which occurred over a decade ago and where all documents which the accused may need to prepare his defence, are with the state. This new charge relates to a transaction that is nearly 20 years old!

Why would a DPP disregard and disrespect the High Court process and the Office of the Chief Justice and institute this new and identical charge knowing that the legality of the very charge is being challenged before the Chief Justice. The DPP is a minister of justice. The office is an independent one. It is bound to act independently, fearlessly, fairly and in accordance with law. One of its functions is to protect the citizenry against unlawful, unfair and vindictive prosecutions.

In this matrix, one cannot discount that the prosecution of these cases are being funded out of the Attorney General’s budget (the Executive) where a whopping $300M has been allocated to retain lawyers. Approximately five attorneys-at-law have been permanently retained as prosecutors. So the treasury is at the disposal of those who are prosecuting these charges. There is no way that Singh and Brassington have the resources to compete.

The state is employing its might against these two persons. Does the state expect Singh and Brassington to challenge each charge are as they are filed? This is simply an abuse of process and the criminal justice system being used as a weapon to harass, intimidate and persecute citizens.

Madanlall Ramraj

On the 19th day of May 2017, Madanlall Ramraj, was jointly charged with five other Directors of the Guyana Rice Development Board with the offence of fraudulently omitting to enter the particulars of certain transactions into a ledger. The charges do not allege that a single cent was missing from the GRDB. At the time of the institution of these charges and on many occasions before and after that, it was widely published in the press that these charges arose from a Forensic Audit done by Nigel Hinds of GRDB. The trial of these charges are ongoing before the Georgetown Magistrate’s Court. They are being prosecuted by a battery of lawyers in private practice retained by the State.

During the course of the trial, Counsel for the Defence made an application for a copy of this Forensic Audit Report as a facility “for the preparation of the defence of their client”. The Prosecution resisted this Application. The Magistrate heard arguments from both sides then eventually ruled that the Prosecution must present the Report to the Defence.

The Prosecution failed to do so, despite several reminders by the learned Magistrate. As a result, acting for Ramraj, I applied to the High Court for a permanent stay to be granted of the charges filed against him. I predicated my case on Article 144 (2)(c) of the Constitution of the Co-operative Republic of Guyana. It provides, inter alia, “it shall be the duty of a court to ascertain the truth in every case provided that every person who is charged with a criminal offence…. shall be given adequate time and facilities for the preparation of his defence.

In the case of Gibson v Attorney General of the Co-operative Republic of Guyana 76 WIR 137 [28] the Caribbean Court of Justice stated,“… that the term ‘facilities’[granted in s.18(2)(c) of the Constitution of Barbados, which is pari materia with Article 144(2)(c) of the Constitution of Guyana] … is usually interpreted to embrace such matters as: (a) tangible objects such as pen, paper, computer and books that will assist in the preparation of one’s defence; (b) save where the public interest or statute requires otherwise, a right of disclosure to the prosecution’s file, an opportunity for the accused to acquaint himself with the result of investigations carried out throughout the proceedings, access to all relevant elements that have been or could be collected by the competent authorities; and (c) if the accused is in custody, conditions of detention that would allow him adequately to prepare for trial.”

On the 5th day of June 2018, after hearing arguments from myself and State counsel from the AG’s Chambers, the Judge ordered, “…UNLESS the Magistrate’s Order to produce the Forensic Audit report on the Guyana Rice Development Board prepared by Nigel Hinds is produced to the Applicant or his Attorney-at-Law by June, 8th, 2018, the prosecution of case jacket number 6976,6977,6978,6980 and 6981 of 2017 shall be permanently stayed”.

On the 8th day of June 2018, just before 4pm, a document bearing the title: Guyana Rice Development Board, Forensic Audit Report for period Nov 1, 2011 to May 31, 2015, Nigel Hinds Financial Services was served upon my office. This document contain 160 pages. Approximately, 98% of these pages, beginning from the Content Page to page 160, were blacked out by some instrument making the pages unreadable and indecipherable. I have made the document public.

You will note that the Judge ordered the production of, “the forensic Audit report on the Guyana Rice Development Board prepared by Nigel Hinds” not a redacted, nor a modified, nor a blacked out, nor an obliterated version of that report.

You will also note that the Judge ordered what the Magistrate had already ordered. That is because in the Affidavits filed on behalf of the Attorney General, in the proceedings before the Judge, there was an admission in that affidavit that the Magistrate ordered “the forensic Audit report on the Guyana Rice Development Board prepared by Nigel Hinds” and not a not a redacted, nor a modified, nor a blacked out, nor an obliterated version of that report. The Judge has since confirmed that there was no compliance with his order.

Today it is Singh, Brassington and Ramraj. Tomorrow it can be you.

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