Attorney General Anil Nandlall today advised Director of Public Prosecutions Shalimar Ali-Hack that it is his opinion that an appeal is not possible against the decision of Chief Justice Ian Chang to quash the advice of the DPP to charge Police Commissioner Henry Greene with rape.
He however advised that she is free to seek a second opinion and different legal representation should she wish to do so. The decision would now be up to the DPP.
Nandlall said that because of the public interest in this matter he had sought and obtained the permission of the DPP to release his advice. As reported in today’s Stabroek News, Nandlall and Ali-Hack met today to discuss the way forward with the Greene case which had put the police commissioner on the brink of a rape charge.
Nandlall’s advice also disclosed that where the DPP might have had the right of appeal under a 2010 Act, the relevant ministerial order has not been entered to facilitate this as the rules committee of the High Court has not completed its work.
He said:
“I am aware that legislation was recently passed, receiving Presidential Assent, containing a provision which seeks to circumvent Section 6(5)(a) of the Court of Appeal Act, Cap. 3:01. It is the Judicial Review Act, No. 23 of 2010, section 22 of which, reads as follows:
`Notwithstanding anything in any other written law, there shall be a right of appeal from a judge of the Court in any application, including one arising from a criminal cause or matter, to the Court of Appeal.’
“However, the said Act is to come into operation by Ministerial Order, as mandated by Section 1 of the said Act. The requisite Ministerial Order has not yet been issued and indeed, cannot be issued until and unless the new Rules of the High Court are promulgated because it is these rules which contain the procedure by which the Court can be approached by a litigant seeking judicial review. The responsibility for the drafting of these new Rules resides exclusively with the Rules Committee, which is chaired by the Honourable Chancellor of the judiciary. I am advised that the drafting of these rules, though commenced, have not yet been completed. ”
The full text of Nandlall’s advice follows:
“WHETHER AN APPEAL LIES AGAINST THE CHIEF JUSTICE’S DECISION IN THE MATTER OF AN APPLICATION BY HENRY GREENE, NO. 12-M OF 2012
The right of appeal is a statutory right. At common law no right of appeal existed. Therefore, if a statute does not permit or authorize an appeal then none exists.
The captioned matter was commenced by a Notice of Motion in the High Court seeking certain prerogative remedies. On the 7th February, 2012, the Chief Justice granted certain orders or rules nisi. On the 29th day of March, 2012, these nisi orders or rules nisi were made absolute.
Ordinarily, an appeal against prerogative remedies granted by the High Court lies to the Court of Appeal. However, there is one exception. This exception is captured by Section 6 (5) (a) of the Court of Appeal Act, Cap. 3:01. It reads thus:
“No appeal shall lie under this section (a) from any order made in any criminal cause or matter;”
This provision was interpreted in at least two (2) written decisions emanating from the Guyana Court of Appeal. In both of these cases, civil/ prerogative remedies were sought in respect of matters having their jurisprudential genesis in the criminal law. These cases are Zaman Ali -v- Director of Public Prosecutions [1991] 45 WIR 196 and Re: Barry Dataram, Civil Appeal No. 158 of 2008.
In the former case, criminal charges were pending against the Applicant in the Magistrate’s Court. He moved to the High Court to stay those proceedings. His application was refused by the High Court. He sought to appeal the High Court’s decision. At the hearing of the appeal, an objection was taken that the Court had no jurisdiction to hear the matter because no appeal lies by virtue of Section 6 (5) (a) of the Court of Appeal Act referred to above. The ratio decidendi of the case was stated to be thus at page 196 of the report:
“Section 6 (5) (a) of the Court of Appeal Act (which falls in the Part of the Act dealing with appeals in civil matters) provides:
“No appeal shall lie [to the Court of Appeal] under this section – (a) from any order made in any criminal cause or matter”
In deciding whether or not proceedings fall within the expression “in any criminal cause or matter”, the decisive factor is the originating proceeding out of which the subsequent application arises, not the nature or subject matter of the application itself. Accordingly, where an application was made to the High Court to stay or adjourn sine die the hearing of information relating to criminal charges and the application was refused, the subject matter of the originating proceeding was “criminal” (i.e. the order sought was so inextricable bound up with the subject matter of the charge that it could not but be considered an order in a criminal cause or matter) and no appeal would lie against the order of the High Court judge.” (emphasis supplied)
In the matter involving Barry Dataram, the High Court granted certain prerogative remedies quashing proceedings filed in the Magistrate’s Court intended to extradite Dataram from Guyana to the United States of America to face criminal charges in that country.
The Attorney General appealed and like in Zaman Ali’s case, the jurisdictional objection was taken on almost identical grounds. Again the Court upheld the objection. The Zaman Ali case was approved and followed. Ramson JA (as he then was) concluded:
“It would therefore be fair to conclude that the provisions of the Fugitive Offenders Act 1988 together with the terms of the Treaty of 1931, the Criminal Law (Procedure) Act Cap. 10:01 and Section 6(5)(a) of the Court of Appeal Act, Cap. 3:01 [no appeal of a criminal cause or matter] irretrievably concatenate, if not unwittingly collude, to disempower an aggrieved party from seeking basal redress, as would normally be the case, even if the most egregious injustice has been meted out to him. The despairing observation of George, C in Zaman Ali, … bears repetition in the instant application:
“By contrast, in the present state of the law, however grave and obvious the error of the…High Court, the aggrieved party can have no redress…” (emphasis supplied)
In Ex-parte Woodhall (1888) 20 QBD 832, Lord Esher MR considered the equivalent section in the UK legislation and stated thus:
“the result of all the decided cases is to show that the words ‘criminal cause or matter’ in section 47 [of the Supreme Court of Judicature Act 1873] should receive the widest possible interpretation, [the intention being] that no appeal should lie in any ‘criminal matter’ in the widest sense of the term”
Again, in 1921, the House of Lords had to consider the term “in a criminal cause or matter” in Re Clifford and O’Sullivan [1921] 2 AC 570 where Viscount Cave said (at page 580):
“…. in order that a matter may be a criminal cause or matter, it must, I think, fulfill two conditions which are connoted by and implied in the word ‘criminal’. It must involve the consideration of some charge of crime, that is to say, of an offence against the public law and that charge must have been preferred or about to be preferred before some court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence.”
In Amand –v- Secretary of State for Home Affairs [1942] 2 All ER 381, the words “criminal cause or matter” were considered by the House of Lords. Viscount Simon LC said at page 385:
‘If the matter is one the direct outcome of which may be the trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, it is criminal’.
Having examined the aforementioned cases and many others which space does not permit me to distill hereof, it is excruciatingly plain that the Chief Justice’s decision in the Application by Henry Greene, No. 12-M of 2012, cannot be appealed. The DPP’s recommendation which was challenged was that Greene should be charged with the offence of rape – “a criminal cause or matter”. The above mentioned cases clearly establish that the fact that the charge was not filed is wholly immaterial. The jurisprudential nature of the allegation is criminal and if the process commenced, was taken to its procedural conclusion, it would have resulted in the institution of a charge of rape.
Therefore, an appeal does not lie.
I am aware that legislation was recently passed, receiving Presidential Assent, containing a provision which seeks to circumvent Section 6(5)(a) of the Court of Appeal Act, Cap. 3:01. It is the Judicial Review Act, No. 23 of 2010, section 22 of which, reads as follows:
“Notwithstanding anything in any other written law, there shall be a right of appeal from a judge of the Court in any application, including one arising from a criminal cause or matter, to the Court of Appeal.”
However, the said Act is to come into operation by Ministerial Order, as mandated by Section 1 of the said Act. The requisite Ministerial Order has not yet been issued and indeed, cannot be issued until and unless the new Rules of the High Court are promulgated because it is these rules which contain the procedure by which the Court can be approached by a litigant seeking judicial review. The responsibility for the drafting of these new Rules resides exclusively with the Rules Committee, which is chaired by the Honourable Chancellor of the judiciary. I am advised that the drafting of these rules, though commenced, have not yet been completed.
And I so advise.
I am obliged to remind you of your right to solicit a second opinion and different legal representation, should you choose to do so.”