Attorney General Anil Nandlall yesterday advised Director of Public Prosecutions (DPP) Shalimar Ali-Hack that an appeal is not possible against the decision by acting Chief Justice Ian Chang to quash her advice to charge Police Commissioner Henry Greene with rape.
Nandlall, who also reminded Ali-Hack that she has a right to seek a second opinion and different legal representation if she wishes, concluded that since it is a criminal matter there is no provision for appeal under the law, with two recent cases supporting this view.
There have been widespread calls for the DPP to appeal Chang’s judgment and Nandlall’s advice has left room for her to make her own decision on the way forward. His considerations also highlighted that where the DPP might have had the right of appeal under a 2010 Judicial Review Act, the relevant ministerial order has not been issued to facilitate this as the Rules Committee of the High Court has not completed its work.
Moments after releasing his recommendation, Nandlall said in an invited comment during a parliamentary break yesterday, said that one has to understand that the right to appeal is a statutory right and if a statute does not confer a right of appeal, then none exists.
The Court of Appeal Act, he noted, specifically says that an appeal does not lie in any criminal cause or matter and as a result, the Henry Greene case is caught by the statutory provision. It is a provision which has been interpreted by at least two written decisions in Guyana. I have referred to them in my opinion.
I have extracted relevant portions of the judgment and it is a provision which we have inherited from England and it is a provision which had been interpreted widely by a number of cases in England,” he explained.
Asked where this development leaves the Police Commissioner, Nandlall said it was not his responsibility to say. “That is not a matter that comes under my consideration or jurisdiction,” he said, adding that Greene’s post is something that is wholly unconnected to the issue of an appeal of Chang’s judgment.
“The job issue has to be dealt with by the personnel who are responsible for the employment and discipline of the Police Commissioner. The Attorney General is not that personnel,” he added.
He was also unable to answer questions about the contract that Greene has with the government which allows him to remain in the post although he is past the age of retirement. Nandlall said that he is unsure on what basis Greene is employed.
In response to queries from reporters as to whether or not the DPP can now reformulate the charge based on different criteria, he said “that is a matter for the DPP.”
Since Justice Chang handed down his ruling more than two weeks ago, Stabroek News has attempted to speak with the DPP on her intended course of action but to no avail.
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In his advice to the DPP, which was released due to the public interest, Nandlall noted that ordinarily an appeal against prerogative remedies granted by the High Court lies to the Court of Appeal, except in any criminal cause or matter as stipulated in Section 6 (5) (a) of the Court of Appeal Act, Chapter 3:01.
He stated that this provision was interpreted in at least two written decisions emanating from the Guyana Court of Appeal and both cases stemmed from criminal matters.
In one of those cases – Zaman Ali v Director of Public Prosecutions [1991] 45 WIR 196, criminal charges were pending against the applicant in the Magistrate’s Court and he moved to the High Court to stay the proceedings. His application was refused and he sought to appeal.
At the hearing of the appeal, Nandlall said 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
“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,” he said. Further, he noted that 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” and no appeal would lie against the order of the High Court judge.
In the other case, Re: Barry Dataram, Civil Appeal No. 158 of 2008, 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.
Nandlall said that the AG 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, he added.
After citing several more cases, Nandlall said that “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).”
He noted that the cases he referred to 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,” Nandlall advised.
He did, however, note that legislation that seeks to circumvent Section 6(5) (a) of the Court of Appeal Act was enacted, in the form of the Judicial Review Act, No. 23 of 2010. Section 22 of the law reads: “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, Nandlall pointed out that the said Act is to come into operation by Ministerial Order, as mandated by Section 1 of the 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,” he said, adding that the responsibility for the drafting of these new rules resides exclusively with the Rules Committee, which is chaired by the Chancellor of the Judiciary. “I am advised that the drafting of these rules, though commenced, have not yet been completed,” he added.
Greene’s accuser, a 34-year-old mother of two, has alleged that she was forced into a city hotel where the act was allegedly committed on the night of November 22, last year. Following investigations, which was assisted by a team from Jamaica, the DPP advised police to charge Greene, but before this could be done he moved to court to set aside the recommendation.
In handing down his judgment, Justice Chang had said that the DPP’s advice to charge was bad in law and irrational, noting that there was no way a conviction could have been secured against Greene.
Representatives of Red Thread and Help and Shelter expressed disappointment at the ruling and later called for the case to be appealed.
Opposition coalition A Partnership for National Unity (APNU) as well as the woman’s lawyer Nigel Hughes also called for the matter to be appealed. Hughes had told this newspaper that he will be approaching the DPP on an appeal since he did not believe the advice to charge should have been reviewed by the court.
