Police Commissioner Henry Greene’s lawyers yesterday secured a High Court order temporarily barring the Guyana Police Force from instituting a rape charge against him, after almost two months of investigations.
“I anticipated he would try any means available to stop the inevitable but we are prepared to wait on the court’s decision,” Nigel Hughes, the attorney for the woman who made the complaint against Greene, said in a reaction to the latest move.
A legal source later said that such a move is not strange in law.
Acting Chief Justice Ian Chang, after reading the Notice of Motion filed on behalf of Greene, ordered that an Order or Rule of Nisi of Certiorari be issued and directed to the Director of Public Prosecutions (DPP) “quashing her advice” given on or before February 3 to acting Commissioner Leroy Brummell and Crime Chief Seelall Persaud to institute a rape charge unless cause is shown.
According to court order, seen by this newspaper, it was further ordered that the institution of a charge of rape on the advice of the DPP be prohibited unless cause is shown.
The matter will be heard on February 20 before Justice Chang.
Senior Counsel Rex Mc Kay along with attorneys Neil Boston, Bettina Glasford and Maxwell McKay moved to the courts yesterday morning and based their application on insufficient evidence and that the charge was “irrational, unreasonable, unfair, unlawful, unconstitutional, null, void and of no legal effect.”
According to the grounds of support outlined in the notice of motion, on January 11, Greene was interviewed by three Jamaican police officers together with the Crime Chief and two days later he submitted a statement to them denying that he had unlawful sexual intercourse with the complainant.
“The applicant ought not to be prosecuted for the offence charged in as much as the evidential test that there is sufficient evidence to provide a `realistic prospect of conviction’ was not met,” the lawyers said, while emphasising that not every allegation of a criminal office will automatically be prosecuted as the DPP retains a discretion to prosecute which should be exercised according to judicial principles.
They noted that in giving her advice to police to prosecute Greene, the DPP did not exercise her discretion according to judicial principles and that she exercised her discretion unreasonably when she advised that he be charged with rape.
Credibility
Greene, in an affidavit in support of the motion, said that in keeping with his practice to meet members of the public, the woman on November 15 last met him at his Eve Leary office, where she complained that the police were investigating an allegation against her and that she wanted to know what stage it was at since she was not being updated. Greene said that he noted the complaint with a promise to follow up the matter. When he did, he was informed by the investigating ranks that another woman had accused the complainant of demanding $2 million. On November 22, the woman returned to Greene’s office and was told that the matter was referred to the DPP for advice.
According to Greene, the woman then told her that her cell phone was lodged at the Sparendaam Police Station and asked for help in accessing it.
“I told her that it is not possible…because the cellphone is being used to conduct the investigation and it would prejudice the investigation,” he said in the affidavit, noting that later that day he informed the woman he had confirmed that the file was at the DPP.
The woman according to Greene then asked to see him socially and they later agreed to meet at the Officers Mess, Eve Leary where he had a 7 o’clock meeting.
“She did visit the Officers Mess on the night of 22nd November, 2011 where we spent some time talking and consuming beverages. We both agreed that when we leave the Officers Mess we will go somewhere private,” the affidavit said.
It was stated that they went to a hotel where they had consensual sex and Greene said that he never had a gun in his possession that night, refuting the woman’s complaint that he held her at gunpoint. From there, he said they purchased food at Regent Street at the woman’s request. Thereafter Greene said he took the woman to her East Coast Demerara home where she pointed out her unfinished house and later said “she was sure that I can use my influence to get back her phone for her.” He said he again told her that the matter was with the DPP before ensuring that the woman went safely into her home.
Greene added that the woman’s background and history were necessary to establish credible testimony and noted that she was under investigation for extortion. He said a closer examination of statements taken in that investigation “will point to only one conclusion that she (name mentioned) lacks credibility and her allegation of rape is not credible.”
The woman had alleged that the rape occurred on the night of November 22, after she had sought Greene’s assistance in solving a police matter. She has said that after the incident Greene warned her against telling anyone or visiting a medical institution or doctor in connection with the matter.
She said he had called her for several days from a mobile number, which she provided as 699-0870. She further stated that Greene wrote the number at the back of his card and told her that only government officials had knowledge of that contact number.
The woman said that several days after the incident, another senior police officer called her phone and requested that she meet a senior government functionary at the Office of the President to discuss the issue but she declined. She said the police officer told her that she should visit the government functionary alone, “with no family or anybody.”
Removal
Home Affairs Minister Clement Rohee last week told this newspaper that Greene’s return hinges on the DPP advice. He is currently on leave pending the outcome of the investigation.
Now that the DPP has advised that a charge of rape be brought, Greene could face disciplinary proceedings under the constitution, which could lead to his removal from office.
Last month, Attorney General Anil Nandlall had said that given the nature of the allegations against Greene, there must be a recommendation from the DPP to charge him before there is any constitutional sanction.
Nandlall’s comments had come in the wake of criticisms that action against Greene under the constitution had not been proceeded with by the government.
Speaking to Stabroek News, Nandlall said that the nature of the allegations would be one of the considerations that would see criminal charges being brought prior to an application of the provisions of Article 225 of the Constitution. “There must be some type of investigation before you activate Article 225,” said Nandlall. “Because it was a criminal matter the police were activated,” he explained.
Stabroek News, in an editorial on January 9th, had said that serious allegations against Greene should trigger Article 225, which caters for a tribunal to be appointed. “…it can determine the matter. This would have required either the Prime Minister or the Chairman of the Police Service Commission referring this issue to the President followed by a tribunal,” the editorial said.
However, Nandlall said that it was hasty for this newspaper to suggest that the constitutional action could be triggered on the basis of a mere allegation. He said that Article 225 is draconian in its effect and ought only to be activated upon sure foundations, as the persons who are affected by it are high constitutional office holders, whose offices enjoy security of tenure under the constitution.
Nandlall noted that the grounds for removal of office holders under Article 225 are the inability to discharge the function of the office, whether arising from infirmity of body or mind or any other cause whatsoever, or for misbehaviour. Having regard to the nature of the allegations against the Commissioner, he said it is “excruciatingly plain” that for the purpose of the Article, the applicable ground would be misbehaviour.
But, he added, that to adhere to the principles of fairness, natural justice and the constitutional guarantee of the presumption of innocence, an investigation was necessary to determine whether or not there is a basis for the allegation.
“It is only when there is a finding of sufficient evidence of alleged misbehaviour by the investigations, that the question of removal from office arises in order to catalyse Article 225 into operation,” he said.
