Attorney at law Nigel Hughes on Wednesday offered to the Director of Public Prosecutions (DPP) his services free of charge to file and argue an appeal of the quashed Henry Greene rape charge advice at the Caribbean Court of Justice (CCJ).
This offer was made after what the attorney said was his firm’s (Hughes, Fields & Stoby) opinion that Chief Justice (ag) Ian Chang made an “administrative decision” to quash the recommendation of the DPP.
In a letter delivered to the DPP, Hughes said that “we have reviewed the aforementioned decision and are of the opinion that the decision itself is capable of being appealed. We are of the opinion that your decision to recommend that the applicant be charged, which was quashed by the Honourable Chief Justice was not a decision made in a criminal cause or matter. It was, with respect, an administrative decision”.
Hughes noted that the firm is of the opinion that the decisions in the cases of Zaman Ali v DPP, Application by Smith and Peterkin (Pink suitcase) and Clifford and O’Sullivan are not applicable. It was explained that in both cases referred to “in the opinion of the Honourable Attorney General, criminal proceedings had already been commenced”.
“We are of the opinion that the victim is also entitled to protection of the law and its procedures”, the letter stated.
Hughes said that the AG’s invitation that the DPP could solicit a second opinion is noted and as such he wished to “indicate that we are prepared to file and argue an appeal in this matter to the Caribbean Court of Justice if necessary at no expense to the state”.
Three other pieces of correspondence were also released to this newspaper which addressed the matter. The first was a letter dated April 10 which was addressed to Attorney General Anil Nandlall. Hughes the author of the letter said that his client, who levelled the rape accusation against Greene, was greatly offended by “the direct statements and inferences” made by the Chief Justice about her in his judgment. It was pointed out that the woman was not a party to the High Court proceedings.
“We are of the opinion that in the light of the jurisprudential pronouncements contained in the aforementioned decision, the decision ought to benefit from a review by the Court of Appeal”.
The letter further stated that the woman had requested that the judgment be appealed.
Nandlall in his reply two days later said that he was of the view that by virtue of Section 6 (5) 9 (a) of the Court of Appeal, Chapter 3:01, the decision is not appealable and he had so advised the DPP.
“The fact that you have not sought to intervene in the proceedings while it was pending before the Honourable Chief Justice, a facility available under the relevant Crown Office Rules, in order to canvass the interest of your client has not escaped me”, Nandlall said.
He noted that “the gravamen of your complaint seems to be the alleged damage done to your client’s character by certain statements contained in the Chief Justice’s judgment. In any event I do not hold the view that an appeal if one were available, would redress the grievance of which you complain”.
On April 17, Hughes responded saying that “we are particularly intrigued by the contents of the third paragraph of your letter. Our decision not to intervene was based on the erroneous assumption that the state was capable of adequately representing the interests of the victim of serious crimes…”
He noted that his primary concern, contrary to Nandlall’s assumption was “not the injury to our client’s reputation but rather the miscarriage of justice that was occasioned by the events which (led) to the decision”.
Nandlall said last week that with the permission of the DPP he had dispatched a copy of his advice to the media. In the advice the AG concluded that since it was a criminal matter there was no provision for appeal under the law and he used two cases supporting this view.
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.
Several persons, including Former Human Services Minister, now Education Minister, Priya Manickchand had expressed disquiet at the ruling of Chief Justice Chang in the matter.
Manickchand had told Stabroek News that she was also worried about the implications the ruling by Justice Chang will have on other prosecutions or intended prosecutions for rape even though she agrees that the court had jurisdiction to review a decision by the DPP to prosecute or not to prosecute.
“As far as it relates to the quashing of a decision to prosecute a rape charge, I am particularly worried about the implications of this decision on other prosecutions or intended prosecutions for rape,” Manickchand said in an invited comment.
Alliance For Change Chairman Khemraj Ramjattan last week urged for Justice Chang’s decision to be appealed even if it had to be taken to the CCJ. He expressed the view that the matter should be appealed so that it could be totally settled.
Last December a 34-year-old mother of two in the presence of Hughes had detailed how she was allegedly raped by Greene at a city hotel. The incident reportedly occurred after the woman had gone to Greene’s Eve Leary office to seek his assistance in a police matter in which she was the subject of an investigation. She had been accused of extortion.
A team of Jamaican ranks travelled to Guyana to assist the local ranks with the probe and after several days during which 35 persons were interviewed and evidence collected, they left. The file was then sent to the DPP who weeks later advised that Greene be charged with rape.
However, before police could institute charges, a battery of lawyers moved to the court and secured temporary orders barring the charge. The case came to an end last month with Justice Chang ruling in Greene’s favour.
