–file went missing, judge rules secondary evidence inadequate
The longstanding fraud case against Dr Abu Bakr Bari failed to make it to trial in the High Court after Justice James Bovell Drakes ruled yesterday that the secondary evidence before the court was not satisfactory for a jury trial.
The judge rejected the secondary materials produced by the state because a large section of the evidence did not bear the initials of the magistrate who presided over the preliminary inquiry in the lower court. The evidence was essentially not accepted as a true copy of the original deposition which was prepared in the Magistrate’s Court.
Justice Drakes’ ruling came after a voir dire (trial within a trial) had ended. The hearing was conducted at the state’s request because the original deposition in the case went missing from the High Court Registry. The state led by Senior Counsel Bernard DeSantos, acting in the capacity of special prosecutor, had applied to the judge to exercise his discretion in determining whether to admit secondary evidence in the trial.
But the judge found that due to the lack of primary evidence the materials before the court were not satisfactory. He commented that it was unfortunate that a file can go missing in the Registry and no one can account for it. Subsequent to his decision, Justice Drakes ordered the jury to return a verdict of not guilty after handing down his decision, setting Dr Bari free.
After his ruling Justice Drakes called on the attorneys appearing in the case to make suggestions as to what the court should do. DeSantos submitted that the case against Dr Bari should go to trial with the secondary evidence before the court, but defence counsel Nigel Hughes argued against this. Hughes said Dr Bari would not be in position to know what charges the state would institute against him, in addition to the issue of questions that surround the secondary evidence.
“We’re happy with the result,” Hughes told Stabroek News after the ruling. He had previously argued that the state could not proceed with prosecuting a man when the evidence against him is simply not there. Since the case involved the alleged forgery of documents Hughes argued that the evidence against his client ought to have been primary.
Justice Dawn Gregory-Barnes had presided over the trial in the lower court and she was called to testify during the High Court hearing. Of the 33 exhibits presented in the case the judge was only able to identify her initials on four of the documents. However, the court found her signature on a fifth document in the evidence presented. During the hearing three sets of documents were presented to the court by the state, but Hughes challenged them.
Initially, Dr Bari and attorney-at-law Atta Sankar were jointly charged with conspiring to defraud the Islamic Call Society.
The charges were amended in the High Court and Dr Bari was named as the only accused in the case. Sankar is reportedly ill and overseas.
The particulars of the case alleged that Dr Bari had fraudulently signed various documents pertaining to the Islamic Call Society and had pretended that he was the local trustee for property belonging to the Society. The incidents were alleged to have occurred between 1992 and 1995.
Several members of the Society had travelled to Guyana to testify in the trial had it proceeded.
