By Patricia Bacchus, Attorney-at-law
The application that was made by Henry Greene was essentially an administrative (public law) application to the judiciary for review of the DPP’s advice to the Guyana Police Force that there was sufficient evidence upon which a charge of rape ought to be instituted against him (Commissioner Greene). His application for public law remedies (writs of certiorari – to quash the advice of the DPP, and prohibition – to prevent the police from charging him) was based on the assertion that the advice given by the DPP was irrational, unreasonable, unfair, unlawful, unconstitutional, null and void, and of no legal effect. Essential to the application by Mr Greene, were the following two issues that were considered by Justice Chang:
1) Whether the court had the authority/jurisdiction to review the advice of the DPP to the police that the charge of rape ought to be instituted against Henry Greene, and if so
2) whether exceptional circumstances existed to justify the court entertaining the application by Henry Greene, despite the fact that the issues could have been dealt with in the criminal process
1) Judicial review
It is settled law, that a decision by the DPP is amenable to judicial review. Although our constitution provides that the DPP shall not be subject to the direction or control of any other person or authority, it also specifies that such a provision does not preclude the courts from enquiring whether that person (in this case the DPP) has exercised those functions in accordance with the constitution or any other law. This interpretation has been applied in cases such as Brooks v DPP (1994).
In his analysis of the court’s jurisdiction to review the advice of the DPP, the Chief Justice notes the general disinclination of the court to interfere with the DPP’s decision to prosecute which stems from the court’s reluctance to deal with issues that can adequately be dealt with in the criminal process itself, and the undesirability of causing delays to the criminal process (since an application for judicial review cannot be entertained simultaneously with an active criminal proceeding). Although he was cognizant of the judicial restraint ordinarily exercised in the prevailing circumstances, he continued by noting that the DPP, like any other public officer, was required to exercise her public law powers lawfully, properly and rationally, and that any exercise of those powers which did not meet the requisite criteria was open to challenge and review by the courts. He cited cases such as Mohit v DPP (2006) in support of this position.
Two other cases have been cited repeatedly by persons on either side of the ‘decision coin’ and were also extensively considered by the Chief Justice in his ruling. These cases are ex parte Kebilene (1999) and Sharma v Browne-Antoine (2006). The case of ex parte Kebilene, concerned a similar type of application, but the specific remedy sought in the Kebilene application was a declaration that the decision of the DPP to give his continued consent to the prosecution of the applicants involved an error of law, namely an erroneous conclusion that the prosecution was compatible with a Human Rights Convention; as such the issue arose as to whether there was a common law principle which precluded the court from granting relief in judicial review proceedings in respect of the DPP’s consent to prosecutions. The court in that case decided that in the absence of “dishonesty or malafides or an exceptional circumstance, the decision of the DPP to consent to the prosecution of the Respondents is not amenable to judicial review.” The court ruled that challenges regarding the applicability of the Human Rights Convention and its compatibility with existing laws should take place in the criminal trial or on appeal.
The case of Sharma v Brown-Antoine concerned an application for judicial review by the then Chief Justice of Trinidad and Tobago; it was alleged that he had attempted to influence the course of a trial that was being conducted by the Chief Magistrate. The Chief Justice denied the allegations and maintained that the decision by the DPP to authorize his prosecution for attempting to pervert the course of justice, and the conduct of the police in seeking to arrest him and search his premises, were all influenced by political pressure exerted by the Prime Minister and Attorney General of Trinidad and Tobago. He accordingly applied for judicial review of the decision to prosecute him. Leave was granted to him in the High Court of Trinidad for him to pursue the judicial review application and interim orders were granted staying the criminal proceedings and preventing his arrest. However, the DPP and Commissioner of Police appealed the High Court orders and the Court of Appeal of Trinidad allowed their appeal and set aside those orders. Consequently the Chief Justice appealed to the Privy Council. The Privy Council in that case outlined the issue to be “whether the decision to prosecute the Chief Justice by whosoever made, should be examined by way of judicial review, or whether the criminal process should at this stage be allowed to take its course. It is not suggested that both processes can be pursued at the same time.” The Privy Council, in deciding this issue, considered the judgment of the High Court and identified a number of criticisms of the Judge’s decision as follows:
– Though the judge rightly cited cases in support of the proposition that a decision to prosecute is in principle susceptible to judicial review on the ground, among others, of interference with a prosecutor’s independent judgment, those cases must be understood in context. Those cases also reflected the extreme difficulty of obtaining such relief and the reluctance of the courts to grant it was emphasized. The Judge did not recognize the very ambitious case the Chief Justice was seeking to establish.
– The Judge did not consider which, if any, of the Chief Justice’s complaints could have been adequately resolved within the criminal process itself, either at trial or by way of an application for a stay of proceedings as an abuse of process.
– The Judge was wrong to assume, for the purpose of ascertaining whether there was an arguable case for judicial review, that the facts as raised by the Chief Justice were true.
– That by making reference to the “totality of evidence” raised by the Chief Justice, the Judge gave no indication of the particular evidence that she found persuasive.
In conclusion, the Privy Council in the Sharma case decided that there was nothing to show that improper pressure was exerted on the police. They were not persuaded that the Chief Justice had any complaint that could not be fairly resolved within the criminal process. It stands to reason that if such improper pressure was indeed evident, the Privy Council would have allowed the judicial review application. This reasoning is inherent in their ruling; why else would they have considered the trial Judge’s analysis of the facts concerning improper pressure? It cannot be argued that the Privy Council was unconcerned with evidence to show an exceptional circumstance, ie improper pressure (or the lack thereof). The Privy Council decided that permission for judicial review ought not to have been granted and had rightly been set aside. The Appeal by the Chief Justice was accordingly dismissed. The Sharma case cited with approval, the judgment in ex parte Kebilene discussed above, and at no point did the Court prescribe that “exceptional circumstances” as highlighted in Kebilene and other cited cases, mean circumstances only where the matter could not adequately be resolved within the criminal process itself.
In the instant case of Mr Greene’s application, Chief Justice Chang, in considering the Kebilene and Sharma decisions, noted that “a challenge in the judicial review proceedings of a decision to prosecute strongly provokes the exercise of judicial restraint and caution as to whether to entertain the application and/or to grant the public law relief sought therein where the challenge can adequately be dealt with at trial.” He continued by stating, “Although such a fact provides a strong ground against judicial review, it does not ipso facto constitute an absolute fetter on the exercise of the court’s discretion to hear the application or to grant the public law relief. Even if there were such a presumption, the particular circumstances of the case can give rise to exceptional circumstances, which can justify the court entertaining the application or providing the relief despite the fact that the grounds of challenge can be adequately dealt with in the criminal process. The point is: the fact that the challenge can be adequately dealt with in the criminal process does not per se constitute an absolute prohibition against judicial review although it does provide a strong ground for the exercise of judicial restraint”.
2) Exceptional circumstances
Since Greene’s application was premised on the assertion that the advice given by the DPP was irrational, unreasonable, unfair, unlawful, unconstitutional, null and void, and of no legal effect, the Chief Justice highlighted the statements made by the DPP in her affidavit in answer to Greene’s application, which states that her advice to the police “is based on the evidence in file, more particularly the statements made by CJ who is making the allegation against the applicant, as well as statements made by the Counsellor and Child Care Protection Officer from Help and Shelter – Carol Innis-Baptiste, Dr Dalgeish Joesph and Dr McRae.” Her supplementary affidavit in answer states, “I concluded that there exists sufficient evidence upon which a charge of rape contrary to Section 3(3) of the Sexual Offences Act 2010 ought to be instituted against the applicant and I so advised the Guyana Police Force.”
Based on to the DPP’s affidavit in answer, and upon an assessment of the relevant statements and an application of legal principles, the Chief Justice concluded:
i. “Clearly the DPP used evidence (statements) which was legally inadmissible against the applicant in advising herself as to the sufficiency of evidence and her advice was consequently legally flawed. She took into consideration the contents of statements which were legally inadmissible against the applicant [Greene]. It is clear therefore her decision to prosecute was unlawful in that she took into consideration that which was irrelevant,” and
ii. “It does also appear that the decision of the DPP to advise prosecution against the applicant was based solely on her finding that there was a prima facie case [ie on the face of it at first sight] against the applicant for the offence of Rape. In deciding whether to advise prosecution, she has not merely to determine whether there was a prima facie case but also whether there was a realistic prospect of a conviction.”
As it relates to legal principles applied by the Chief Justice, he was knowledgeable on a number of codes and guidelines dealing with the test for the exercise of prosecutorial discretion by the DPP (or Crown Prosecutors in the UK), including The UK Code for Crown Prosecutors which provides that prosecutors must be satisfied that there is enough evidence to provide a “realistic prospect of conviction”; this is called the Evidentiary Stage of the Full Code Test. The UK test provides that:
– Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case that does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.
– A realistic prospect of conviction is an objective test based solely upon the prosecutor’s assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect.
– When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears.
The Chief Justice also cites UN draft guidelines and international standards that require more than a mere prima facie case for the initiation of prosecution. He cites an article written by the DPP in Victoria, Australia, in which it was posited that, “In most, if not all common law jurisdictions around the world, it is accepted by prosecuting authorities that a prosecution should not commence or be maintained unless the evidence in the case passes an evidentiary test.”
Justice Chang, being cognizant of the applicability of such codes in Guyana, noted that though strictly speaking, they do not apply to Guyana, “this court finds it absurd for anyone to argue that the DPP in Guyana would be lawfully exercising her public law discretionary power to prosecute once she determines that there is a prima facie case even though, objectively, the case as a whole has no realistic prospect of yielding a conviction.” It is also important to note the 2009 case of R (F.B.) v DPP, in which it was held, despite the Sharma case, that judicial review of a prosecutorial decision to prosecute or not to prosecute is available. Toulson, LJ posited that “If the substantive quality of the evidence is such to pass the merits test, the prosecution should go ahead. If not, there should be no prosecution”. In R (F.B.) v DPP the “merits test” was used interchangeably with the “realistic prospect of success” test.
Justice Chang applied such a test; one which requires the prosecutor to assess the usability and reliability of the evidence, and to assess any information relating to the defence that may be put forward by the suspect. With this test in mind, and based on an assessment of the statements and the DPP’s affidavit, Justice Chang concluded that the issue of non-consent (which is an element of the offence of rape, and for which the prosecution bears the burden of proof), was not considered by the DPP. In considering this issue, the DPP would have had to consider the credibility and reliability of the story told by the complainant, assessed on the basis of the contents of statements relevant to the specific allegation against Mr Greene.
Furthermore, Justice Chang posited that the independent statements of the hotel owner and the receptionist (which were both taken before Greene’s statement was taken) were largely inconsistent with the story told by the complainant, particularly as to whether force was seen to have been exerted on her, and whether the applicant had a gun in his hand. These statements were certainly indicative of information that could have been used by Greene in his defence, information that ought to have been considered by the DPP under the evidential test.
There was other information disclosed by the complainant in her statement, which in the Chief Justice’s estimation negatively affected her credibility and the reliability of her story. CJ had gone to meet Greene in an attempt to retrieve her cell phone which was confiscated by the Police as evidence in an Extortion matter against her (CJ). She was unsuccessful in retrieving the said phone, but nonetheless went again to meet with Greene at the Officers’ Mess on the night of November 22, 2011. Mr Greene and the complainant left the Officers’ Mess together in Greene’s vehicle; he then drove to a city hotel. The complainant’s claim is that she was violently raped on the night of November 22, 2011 by Greene. She nonetheless maintained communication with Greene after the alleged incident of violent rape, noting that Greene had promised her the following day, that he would send a police car to bring her into Georgetown, but had broken his promise. After the alleged incident of violent rape the complainant admitted that she came to Georgetown on December 6, 2011, met Greene and collected money; she telephoned him on arrival and when he asked her to remind him what she had come for, she responded for “the money.” These were the “facts” disclosed by the complainant in her statement. One day after meeting Mr Greene, on December 7, 2011, the complainant met Dr McRae and whilst continuously crying, complained that Greene had raped her on November 22, 2011 using force and threats and that she was so traumatized that she could not sleep or eat and was having nightmares; this was disclosed by Dr McRae in her statement.
Apart from the aforementioned legal considerations regarding the DPP’s test of “realistic prospect of conviction” and issues of credibility and reliability, the Chief Justice also considered the legal issue of the admissibility of the statements that the DPP said she considered in determining that Greene ought to be charged. As mentioned above, the Chief Justice concluded that the DPP’s decision to prosecute was unlawful since she took into consideration that which was irrelevant and inadmissible. He explained correctly in law, that the evidence (statements of the doctors and social worker) was legally inadmissible to support a charge of rape against Greene, since they only constituted complaints by the complainant and could not be used to support her story of rape in her statement. The Chief Justice even highlighted inconsistencies between the story related by the complainant in her statement and the story related in the statement of the Help and Shelter counsellor, regarding the manner in which she claimed to have been physically overpowered. Furthermore, he noted that whatever distressed condition the doctors observed the complainant to be in when they saw her, was inadmissible to support her story of being forcibly raped.
In his analysis of the admissibility of the statements, Justice Chang was not attempting to discern whether there was corroboration of CJ’s story (under Section 69 (1) of the Sexual Offences Act 2010 (no corroboration of the evidence of the complainant… shall be required for a conviction), but was conducting a determination of whether the advice given by the DPP was irrational and unreasonable, based on an analysis of the evidence that she said she considered and its admissibility. According to the Chief Justice “prosecutorial authorities remain under the duty of making realistic assessments of their [witnesses/victims] credibility and reliability particularly in cases where the case for the prosecution rests solely on the evidence of such persons. This is so even though the absence of corroboration does not weaken the case for the prosecution.” The reliability and usability of evidence is, after all, a part of the evidentiary test for the exercise of prosecutorial discretion in most, if not all common law jurisdictions.
The Chief Justice accordingly concluded that even if the DPP had given careful consideration to the contents of all the statements before advising prosecution of Greene, her decision to so advise was irrational in the sense that no prosecutorial authority, having made an objective assessment of the prosecution’s chance of securing a conviction, could have found that those statements gave rise to a realistic prospect of conviction.
Unlike what transpired with the trial judge in the Sharma case (which concerned a claim that the decision to prosecute was politically motivated), Justice Chang in entertaining Greene’s application was cognizant of the possibility that the arguments made by Greene could have been dealt with within the criminal trial process. However, in his estimation exceptional circumstances existed since this “was a case which cried out for a proper application of the evidentiary test by the DPP before advising prosecution against the Applicant… It was a case in which such a misunderstanding of her function as a prosecutorial authority had to be corrected by way of judicial review in the public interest. The Court felt that the case was an appropriate one for a challenge to the decision of the DPP to prosecute and an appropriate occasion to debunk the pervasive fallacy that the decision whether or not to prosecute rests solely on the answer to the legal question as to whether there is a prima facie case and that the reliability of the contents of statements made to the police in criminal investigations is within the exclusive province of the jury. The low rate of prosecutorial success and the heavy backlog of criminal matters pending hearing may well have a fundamental relationship with his fallacy which seems to permeate the mindset of the prosecutorial authorities in Guyana.”
Conclusion
the analysis above deals exclusively with the legal issues and relevant facts in the Henry Greene matter. It does not deal with issues of morality or legislative deficiencies, which effectively are questions for the policy-makers and Parliament. Justice Chang in his ruling, applied legal principles to the facts before him and decided that there were sufficient exceptional circumstances to enable the court to entertain a judicial review application and grant the appropriate remedies, prior to the commencement of criminal proceedings. Persons have raised a number of concerns relating to the ruling of the Chief Justice, they include:
1) The assertion that the “flood gates” are now opened to widespread applications of a similar nature. I would humbly suggest that this is largely exaggerated. Justice Chang’s ruling was confined to a situation where in his estimation the DPP had clearly not satisfied herself according to the evidentiary test, before advising the police to institute charges. The Chief Justice found this to be a fundamental error in the exercise of the prosecutorial decision-making process, and it was so alarming that in the public interest it warranted the court’s intervention at this stage.
2) The assertion that the Chief Justice examined and disclosed certain sensitive facts in his judgment and placed himself in the position in which jurors ought to sit. It must be understood that an application for judicial review of a decision would obviously necessitate an examination of the facts upon which that decision was made. This is the nature of judicial review proceedings.
3) The assertion that the Chief Justice’s ruling is inconsistent with the ruling in the Sharma case. A thorough reading and analysis of both decisions would reveal that the issues in the two rulings could easily be distinguished. Sharma’s ruling concerned an assertion that there was political interference in the decision to charge the Chief Justice, for which there was no evidence. Greene’s ruling concerned the DPP’s failure to meet the required test, which necessitated no extrinsic evidence, since the DPP’s affidavit and the relevant statements were sufficient to determine this issue. Further, in the Sharma case the trial Judge did not consider which, if any, of the Chief Justice’s complaints could have been adequately resolved within the criminal process itself. In the Greene case, Justice Chang did consider the ‘adequacy of the criminal process’ but concluded that the issue was best suited to a judicial review application.
Being charged with a criminal offence is no small matter. It involves a loss of reputation and time, as well as financial expenditure. I am certain that I not only speak for myself, but many others, when I say that if charges were to be instituted against anyone that I care about, I would at least expect those charges to be based on an objective and thorough assessment of all the relevant evidence to ensure that the applicable prosecutorial decision-making test is met. In any democracy, it is to court grave danger if adequate care is not taken or the proper standards are not met, in the exercise by any authority of a decision-making discretion which can lead to the deprivation of a citizen’s constitutionally enshrined right to liberty.
