The complainant in the Henry Greene rape allegation has moved, through her attorney Nigel Hughes to appeal the decision of Chief Justice (ag) Ian Chang; just two days before the six weeks permitted by law to do so expired.
According to the Notice of Motion filed on May 7, an application is being sought for an order permitting the woman who had levelled the allegation against the former police commissioner to be joined as a respondent in the originating Notice of Motion as well as an order permitting her leave to appeal against Chang’s March 29 decision.
The mother of two had accused Greene, now retired, of raping her on November 22 last at a city hotel. Greene, through his lawyers, had moved to the High Court to bar police from charging him. Justice Chang later quashed the advice of the Director of Public Prosecutions to charge Greene with rape, saying that it was irrational and not likely to secure a conviction.
The woman in her affidavit in support of the Notice of Motion said she was advised by her attorney that after reading Justice Chang’s decision there were sufficient errors of judgment contained therein and that it could be appealed.
The woman said she was also advised that, “I am unable to properly institute private criminal charges against Henry Greene for reasons that the commencement of such proceedings may constitute an abuse of process and be liable to be struck out by a court of competent jurisdiction.” It was noted in the court documents that the attorney also advised that as a citizen she was entitled to equal protection of the law and the fair investigation and prosecution of criminal complaints she had made.
Additionally, the woman said she was advised that the complaint of rape against Greene could not be proceeded with as a result of Justice Chang’s decision.
“I am advised by my attorney at law and verily believe that I am an interested party in the proceedings brought by the applicant (Greene) as I was the complainant, I have been adversely impacted upon by the decision and that I am constrained in taking any further steps in the institution of criminal proceedings against Henry Greene,” the court documents said.
The woman said she was advised that she has an interest in the matter and should be permitted to intervene to protect her interest and more so should be granted leave to intervene for the purposes of filing an appeal.
Fully appreciate
It was argued in the documents that Justice Chang erred when he failed to take into account and “fully appreciate” the provision in the Sexual Offences Act, 2010 specifically the provisions of Section 7 which provides for the presumption that a complainant has not consented to sexual activities in circumstances where the perpetrator was a person in authority. The documents stated too that the judge erred when he failed to consider Section 52 of the Act which states “that judges are to direct juries that complaints of sexual offenses display a wide range of responses and that the absence of behaviour they might expect of a complainant of a sexual offence to display should not be taken as evidence that the offence charged did not take place.”
The affidavit said the judge also erred when he arrogated onto himself the powers of a trial judge in a criminal matter and when he found that there were rare and exceptional circumstances which permitted him to review the advice of the DPP.
It stated that the judge also erred when he directed the DPP to produce statements and also failed to consider that the complainant would be denied the secure protection of the law when she was precluded from pursuing criminal charges against Greene.
The court documents further stated that the judge erred when he purported to rely on a statement by the virtual complaint in the course of the investigation, which could only have been obtained by Greene by virtue of his special position as commissioner of police and which statement could only have been improperly obtained by Greene.
It was noted that in April, the woman made an application in the High Court by way of a Notice of Motion to be joined as a party to the application by Greene. The motion was served on attorneys for Greene as well as the AG but a date is yet to be fixed for hearing of the said application.
The woman noted in her affidavit that she was advised that the time permitted for filing an appeal against Chang’s ruling was six weeks. The period, according to her, would have expired on May 9.
“I am advised by my attorney and verily believe that there being no appeal filed by any of the parties to the said proceedings then the Honourable Chief Justice may not have jurisdiction to entertain my application to be joined as a party,” the documents stated.
She said that by the time her application is heard and determined the period to appeal may have expired and “I would have lost the opportunity to be joined as a party for the purposes of appealing the said decision”.
In the circumstances, the woman expressed belief that the court had jurisdiction to hear, entertain and determine her newest application and that she was a just and proper party to the proceedings.
Many have been calling for the ruling to be appealed among them attorney at law and chairman of the Alliance For Change (AFC) Khemraj Ramjattan. Ramjattan had told Stabroek News in an invited comment that the case should be re-argued at the level of the Court of Appeal and if the ruling was not favourable then the Caribbean Court of Justice (CCJ) was the next available option.
“Let the CCJ then also do what would be regarded as a comprehensive scrutiny of those two cases that the AG is saying that blocks an appeal. I would like a CCJ ruling on this point,” he said.
Ramjattan noted that the charge had been blocked by the Chief Justice and “it is my legal opinion that… it should be appealed to be totally settled.”
AG Anil Nandlall had said after the ruling that he advised the DPP that there was currently no enforced provision allowing an appeal in criminal matters. He did, however, also advise that she had a right to seek a second opinion and different legal representation if she wished, leaving room for her to pursue the appeal.
Despite several efforts this newspaper has been unable to speak to the DPP on this issue.
