Dear Editor,
Those who reproach the decision of Chief Justice (ag) Chang in the matter Application by Henry Greene do so on two bases. Firstly, that on the facts the decision was wrong and secondly, on the law the decision was wrong.
On the facts, the Guyana Police Force has an obligation to make public the report submitted by the independent joint Jamaican-Guyanese team of investigators. Paragraph 33 of the said report states, “…. the action of the complainant is questionable.”
This report was never placed before the Hon Chief Justice (ag) and it reflects well on the analytical prowess of CJ (ag) Chang that he also made the same finding. I ask all these critics, Dana Seetahal SC, Priya Manickchand, Debbie Backer, Red Thread and others whether a charge of rape, or any charge whatsoever can be made where the “action of the complainant is questionable”?
Prosecuting authorities would do well to emulate the prosecutor in the Strauss-Kahn case who said that if he cannot believe the complainant beyond reasonable doubt, then how could could he ask a jury to do so. This is what Greene’s case is all about. The DPP has to make an assessment of the evidence. And I ask, which rational mind can be satisfied beyond reasonable doubt where “the action of the complainant is questionable”?
I am certain that the same public pressure which is now heaped upon the Chief Justice (ag) weighed upon the mind of the DPP in Greene’s case. Mr Greene was in the backdrop of the Nazim Ally case where public criticisms were levelked at the DPP in person.
Ms Seetahal in her opinion seeks to advance a proposition that the decision of the DPP is not open to review and cited the case of Sharma v Brown-Antoine and others (2008) 69 WIR.
Unless the report in the WIR is inaccurate, I make bold to say that Ms Seetahal’s understanding of Sharma is flawed. The opinion of the Privy Council in Sharma’s case clearly states, “It is well established that a decision to prosecute is ordinarily susceptible to judicial review… It is also well established that judicial review of a prosecutorial decision, although available in principle, is a highly exceptional remedy.” I ask whether Ms Seetahal would recommend a charge where “the action of the complainant is questionable?”
That is why the court offers protection against irrational and unlawful decisions.
I have also noticed a host of persons, including Keith Massiah SC pondering whether an appeal is available, and even suggesting a bench of five. Also Khemraj Ramjattan calls for an appeal. Ms Seetahal is anxious to know what the Caribbean Court of Justice would have to say if given the opportunity.
The calls for the appeal remain unabated, and are being made with greater vigour. The headline in the Stabroek News of Friday, April 20, states that, ‘Hughes prepared to argue Greene appeal at CCJ.‘ It is alarming that lawyers of the ilk of Nigel Hughes can be arguing that the Chief Justice made an “administrative decision.“ A judge sitting in open court hearing the ancient writ of certiorari never sits in an administrative capacity.
The absurdity of this proposition is easily grasped by rudimentary reasoning. For the Chief Justice to make an “administrative decision” he must sit in an administrative capacity exercising administrative supervision. Who is it that does not know that the Chief Justice does not exercise any administrative supervision over the DPP?
Has someone abolished the doctrine of separation of powers?
The simple fact is that no appeal lies.
I also see a bunch of legal scholars will be marking Chief Justice (ag) Chang’s test papers at St Stanislaus this weekend. When will this foolishness stop?
Yours faithfully,
V V Puran
Attorney-at-law
