Director of Public Prosecutions (DPP) Shalimar Ali-Hack has moved to the courts to challenge a series of orders by Justice Roxane George-Wiltshire at the last gaol delivery setting out dates by which long-incarcerated accused should have their trials completed.
The DPP made an ex-parte application before Chief Justice Ian Chang on July 14 for a conservatory order in the matter and the CJ yesterday ruled that the orders made by Justice George-Wiltshire be treated as directory until the hearing and determination of the Notice of Motion filed by the DPP.
In the Notice of Motion, the DPP is seeking a declaration that the orders made by Justice George-Wiltshire are unlawful and in breach of Articles 144 (8) and 187 of the Constitution and in breach of the Criminal Law (Procedure) Act, Chapter 10:01. She is also seeking an order rescinding the orders made by the judge.
In her affidavit in support of the Notice of Motion, DPP Ali-Hack stated that she had been informed by state counsel Latchmie Rahamat that at the gaol delivery for the April 2010 criminal sessions, Senior Superintendent of Prisons Trevor Small presented to the court the list of persons awaiting trial as at May 24th, 2010.
The DPP deposed that the judge then directed that all prisoners awaiting trial at the Georgetown Prisons be taken to the High Court for gaol delivery on May 27th. The deponent stated that on that day Justice George-Wiltshire then entertained submissions by counsel for some of the prisoners and also questioned several of them herself. The DPP averred that the judge then proceeded to make orders in respect of each prisoner in relation to when they should be tried.
DPP Ali-Hack said that she then wrote the Registrar of the Supreme Court seeking a copy of the orders made by the judge and received a reply on July 7, 2010 listing 52 orders in respect of prisoners setting out the dates by which they must be tried.
In her affidavit, the DPP swore “At no time whatsoever was I afforded a fair and adequate hearing nor was I afforded the opportunity to show cause as to why the said Orders ought not to be made”.
The deponent further stated that she had been advised by attorney Mohabir Anil Nandlall that the orders were made contrary to and in breach of the rules of natural justice and in violation of her fundamental right to a fair hearing; that the orders were in breach of and contrary to Article 187 of the constitution in as much as the judge had “completely usurped the functions of my office and is subjecting my office to Her Honour’s direction and control which is contrary to and in breach of Article 187(4).”
Further, that the orders are unreasonable as “it is an almost physical and legal impossibility for the Office of the Director of Public Prosecutions to comply with the same” and that there were only two judges assigned to sit at any given time in the Demerara Assizes and “it is a near impossibility” for the two judges to hear and conclude the cases which were ordered by the judge to be presented.
Generally, the DPP deposed, the two judges hear and conclude an average of three cases per session and would be physically unable to comply with the said orders. The DPP noted that based on the orders made by Justice George-Wiltshire, ten cases are to be presented, heard and determined in the June sessions. The DPP presented figures to show that the number of cases disposed of in recent sessions fell below this. The DPP said that in the January 2010 sessions three indictments were heard; in the April 2010 session 3.5 indictments were heard; six in the January, 2009 session; five in the April 2009 session; eight in the June 2009 sessions; five in the October 2009 sessions; eight in the January, 2008 sessions; seven in the April, 2008 sessions; five in the June 2008 sessions and eight in the October 2008 sessions.
The DPP said that the judge in setting a figure of 10 cases is assuming that the two judges will work for the entire sessions. Further, the DPP argued that the orders do not take into account other factors beyond her control such as witnesses not being available readily and the expected length of the case depending on the complexities of the legal issues, the number of witnesses scheduled to testify and the number of accused on the same indictment.
DPP Ali-Hack also contended that Justice George-Wiltshire had made orders for certain indictments to be presented by a certain date for which indictments the DPP had not yet received the depositions. Importantly, the DPP averred that after reviewing some of the depositions she may decide that there is insufficient evidence to indict.
On May 27th, 2010, Justice George-Wiltshire had been scathing in her criticism of the criminal justice system. She had said that the criminal justice system is accountable to prisoners awaiting High Court trials and she declared that the time had come to fix what was broken in the system because citizens cannot continue to languish in prison for years.
Prison records released on that day disclosed that 132 inmates of the Georgetown Prison had been committed to stand trial in the High Court; some were incarcerated since 2003.
Justice George-Wiltshire, a former DPP, said then that there has been a breakdown between the High Court and the Chambers of the DPP, and the communication which formerly existed needed to be up and running again in the interest of the individuals who are in prison awaiting trials. “Jail delivery is meant to hold the criminal justice system accountable so that prisoners do not fall off the radar,” the judge added.
