I have had an opportunity to read what I consider to be the seriously flawed decision of acting Chief Justice Ian Chang in the Henry Greene case in which the former Commissioner of Police formally applied to the court to stop the Guyana Police Force from acting on the advice of the DPP to charge him with rape.
The first thing that strikes me about the application is that it deals with “advice” allegedly tendered by the DPP to the Force rather than an actual charge, demonstrating the privileged position of the applicant. In the first place, no ordinary citizen being investigated by the police is ever permitted access to “advice” tendered by the DPP. But here, there is an application by a person under investigation with access to classified information. This aspect of the applicant’s position of power and influence is pervasive throughout the case.
It is also important to note from the outset, that it is unusual to have a challenge mounted against the “advice” of the DPP in which the applicant seeks the court’s intervention to quash any possibility of a charge based on the DPP’s advice, based presumably on her professional assessment of the evidence reviewed by her.
Constitution of Guyana
The Guyana Constitution is clear on the question of the exercise of the power of the DPP, stating in Article 187 (4) that “In the exercise of the powers conferred upon him by this Article the Director shall not be subject to the direction or control of any other person or authority.” For that and other reasons, many have argued about whether the DPP’s actions are amenable to judicial review, the necessary consequence of which, if successful, would be to give directions to the DPP, in clear breach of Article 187 (4).
The Constitution of Guyana answers the question in Article 232 (8) by stating that Article 187(4)and similar Articles shall not be “construed as precluding a court from exercising jurisdiction in relation to any question whether that person or authority has exercised those functions in accordance with this Constitution or any other law.”
In other words, the Constitution is very clear on the issue: the exercise of the functions of the DPP are amendable to judicial review only in respect of two circumstances, viz, whether the DPP has exercised her function in accordance with the Constitution; or in accordance with any other law.
In order to successfully approach the court for judicial review the applicant must therefore satisfy the requirements and criteria of the Constitution. Nothing else. In the decision, Mr Justice Chang failed to identify the relevant articles of the Constitution or the law which the DPP breached in exercising constitutional functions.
Among other things, the thrust of the Judge’s position is that the DPP’s assessment of the evidence available was flawed and therefore the decision (advice) to prosecute was irrational and unreasonable (pages 10 and 64 of the decision). Despite the use of the word “unlawful” in addition to the word “irrational” when used, the Chief Justice failed to identify the specific Article of the Constitution or the section of the relevant law which was breached, as required by the Act 232 (8).
Moreover, in the course of his 65-page decision, the Judge introduced the concept of “judicial fairness” from the UK jurisdiction with its unwritten constitution, applying it to Guyana with its written Constitution that includes specific provisions to deal with matters of judicial review of the action of the DPP.
In order to advance the claim that decisions by the DPP are subject to judicial review the applicant’s attorneys first went searching in England for a precedent to support their
client’s cause. They found none. There is no known English case in which leave to challenge a decision of the DPP to prosecute has been granted. The reason for this is clear: the courts in their supervisory function do not wish to deal with matters which should properly be dealt with in the criminal trial process itself.
What they did find were judges who spoke of “extraordinarily rare circumstances,” or only in “highly exceptional cases,” that a court would be moved to judicial review of the DPP’s action (which in this particular case was nothing more than her advice to the Guyana Police Force which could or could not be acted upon, but which the applicant equated with “decision”).
Foreign cases
Of course, a good researcher searching further afield from Ireland to Kenya and all over the globe for the exceptional circumstances found that in all the cases decided by the foreign courts it remains a constant that there must be a complaint that cannot be dealt with during normal criminal and appeal proceedings for the complaint to be successful.
These exceptional circumstances which the Guyana courts are compelled to take into account are identified in Article 232 (8). In the Irish case cited by Mr Greene’s lawyers and accepted by the Judge, the court quashed the decision of the DPP to institute criminal proceedings on the grounds of “procedural unfairness,” a brand new idea in Guyana for the granting of prerogative orders against the DPP. The fact of the matter is that there was an actual decision to “institute” criminal proceedings in these cases as against mere “advice” to the police to do so. This is a big difference which appears to have escaped serious attention in the review of the DDP’s decision which was not addressed by Justice Chang.
To compound this omission, Justice Chang appears to have relied on the New York case involving the former IMF Managing Director Dominic Strauss-Kahn (see page 41 of Justice Chang’s decision) which also included the laying of charges and the mounting of a defence in a trial process. Here, at the time of the court’s intervention, no one was charged, or has yet been charged.
Although it was the call of the DPP and the police to evaluate the evidence (statements), in order to lay the foundation for a possible quashing of her advice (decision), the court delved deeply into the available statements and in fact conducted a mini-criminal trial (without the benefit of witnesses, cross examination, etc) and pronounced not only on the reliability and credibility of the complainant but also on the competence of the DPP in evaluating the said statements. And it did all of this in the process of attempting to wrestle with the original complaint by the applicant on a matter essentially involving administrative and constitutional law. This is the root of the problem in the Greene decision in which the court went far, far out on a limb favourable to the applicant.
The rules pertaining to the granting of prerogative orders of prohibition and certiorari are well established in the literature. Certiorari lies to quash a decision already made where:-
1. It is ultra vires
2. It has been obtained by fraud or
3. There is an error of law apparent on the face of the record of the proceedings.
That’s it.
This is generally in line with Article 232(8) of our Constitution. No wonder then that the British courts have consistently rejected applications for prerogative writs not only because they have all failed to satisfy the above criteria but also because of the overarching position that the matters complained about generally can best be dealt with during the criminal proceedings or appeal. The position here is not much different.
At page 14, Mr Justice Chang stated that in dealing with the application for prerogative writs of certiorari and prohibition, “the function of the court is simply to determine whether such advice or decision of the DPP can withstand the rationality test in the Wednesbury sense. This is not in keeping with the Constitution of Guyana, which clearly requires the advice or decision to meet the tests laid down in Article 232 (8). The so-called rationality test is a British thing. It is not a requirement here. It may be a useful guide in many cases but it is not the law of Guyana when dealing with the advice of the DPP.
Mini-trial
On page 18 of the decision the Judge began a review not only of the applicant’s contentions and statements made by the complainant alleging rape, but also delves deeply into a separate criminal investigation of extortion involving the complainant still being conducted by the police.
The detailed examination of these two matters and various statements by the Judge runs from page 17 of the decision to page 40 and resumes on page 43 and extends to page 52.
This mini-criminal trial into the rape allegation against Mr Greene also looked at his statements, that of a Mr Thom – the owner of the villa – apparently a friend of the applicant and Mr Thom’s employee. It also examined the statements of Dr Joseph, Help & Shelter and Dr McRae. Before getting into the detailed analysis of the statements and the applicant’s affidavit, the Judge opined that “if true,” there were sufficient “exceptional circumstances” to provoke the court’s intervention while conceding in the same breath, “even though the issues raised by the challenge could have been dealt with in the criminal proceedings in the event of the institution of the charge” (page 16). It is the latter position which has always informed the British courts in refusing such applications, without exception.
The judge found the potential “exceptional circumstances” alluded to, in the foreign cases while all the while forgetting the compelling provisions of Article 232 (8) of the Guyana Constitution.
This sortie into the evaluation of an evidentiary sufficiency in a potential rape trial (which was not the subject matter of the application) had become absolutely necessary to enable the court – uninterested in Article 232 (8) – to strike down (or not strike) the advice of the DPP, her competence and professionalism.
The court’s mini-trial ended with the Judge’s conclusions as follows:
1. The complainant was attempting to procure no less a person than the Commissioner of Police to pervert the course of criminal justice (page 22).
2. According to the statements, the applicant offered money to the complainant and put his cell phone number into her phone and promised her “that he would ensure that she got back the phone” (page 22).
3. “Surely, the relationship between the two has progressed beyond that of Commissioner and a complaining member of public.”(page 22).
4. “It strains one’s credibility to believe that she, succumbing to verbal pressure and threatening conduct by Greene, “came out of the car and entered the Hotel room without seeking to run away or escape from the applicant, even though he had expressly made clear to her his intention to have sexual intercourse with her” (pages 24-25).
5. “The claim of the complainant that the applicant had a gun in hand was not credible“ (page 25).
6. “The conduct of the complainant was not the words of a victim of an on-going rape but rather that of a collaborating partner who clearly wanted to convey to her partner her enjoyment of the intercourse and her desire to play a more active or aggressive role” (page 26).
7. The Judge asks rhetorically, “does this not reveal that her conduct must have given him the belief that what had just occurred was consensual?” (page 26).
8. Her conduct after the alleged rape “can hardly be viewed as that of a distressed victim of violence and rape and his conduct can hardly be viewed as that of a person who had just violated her” (page 27).
9. “It seems more likely” that the complainant in her statement to police after the alleged rape and after consulting with a lawyer sought to undo her “allegation of non-consensual sexual intercourse with the applicant” (page 28).
10. “It is significant that she did not accuse him of using violence to obtain sexual intercourse with her or raping her, in a text message to Greene (page 31).
11. “It is certainly incredible” that the complainant would again take money from him (Greene) to assist her to purchase windows – especially as she (as she stated in her statement) had already purchased the windows (pages 32 -33).
12. “The complainant’s maintenance of communication with the applicant and acceptance of money tended to belie her story that he had violently raped her“ (page 33).
13. “It is clear that it was the complainant who had demanded $2 million from Shelly Henry (page 36). [Note: This relates to the second mini-trial on extortion].
14. Her purpose for video-recording Shelly Henry was to extort money and “it was to extricate herself from her own criminality” that she decided to approach Mr Greene (page 36).
Realistic prospect of successful prosecution
Mr Justice Chang, after conducting a thorough review of the all the statements, a mini-rape trial and a mini-extortion trial, declares that the DPP was under a duty to peruse and analyse the statements and then ask herself “whether there was a realistic prospect of successful prosecution” before tendering the advice to the police.
The Judge then declared that the issue became simply whether there was a realistic prospect of a positive finding that there was no consent, “the applicant having admitted to sexual intercourse.” This is really getting into a rape trial far, far away from determining the merits of an application for prerogative writs.
This whole notion that the DPP must be convinced of a “realistic prospect of successful prosecution” is a new test placed upon the DPP. The test in Guyana has in the past always been whether a prima facie case had been made out. This new notion is a recent import from the UK Code for Crown Prosecutors issued by the UK DPP under Section 10 of their 1985 Act.
The criteria for prosecution in the UK relate to:
1. Sufficiency of evidence (for a successful prosecution)
and
2. The public interest.
As to (1) the Crown Prosecutor (in the UK) must be satisfied among other things that there must be “realistic prospect of conviction.”But this is not the law in Guyana. Although the Judge seems to believe that the DPP must be bound by this part of the UK code, it is my contention that she does not have to be.
The Honourable Chief Justice then takes an all too brief look at the (Guyana) Sexual Offences Act 2010 in his continuing enquiries into the allegation of rape (page 37-39) but not only did he not carefully address – since he had strayed off the territory – the meaning of “consent” and “rape” in the said Act but continued on page 40 to dwell on the question of “relative prospect of conviction” and even refers to the famous case of the former IMF Boss Dominique Strauss-Kahn, forgetting all the while that Strauss-Kahn was actually charged with the offence and had to present a defence.
In the Greene case, after all the detailed examination of the statements (evidence) the Judge declared that the applicant should not be put through the “trauma” of presenting a defence in response to a charge, presumably “extremely rare” for a law enforcement officer.
The Judge continued to set more tests for the DPP including the “relative prospect of conviction” test imported from the UK code.
This is in addition to the “rationality test,” which like the aforementioned new imported test is not part of the Guyana law (pages 43-46). The Judge once again summed up the “facts” that emerged relating to the complaint. He had already done that but like the good judge he is, considered it necessary to sum up the mini-rape trial.
The credibility, character and integrity of the complainant took a severe mauling as a result of this in-depth analysis. Significantly too, the statements of Dr Joseph, Dr McRae and the Help and Shelter Counsellor were given short shrift and everything said to these persons was peremptorily dismissed.
On the other hand, the statements by Mr Greene, his friend Thom and Thom’s employee were all received favourably and no aspersions cast upon them, although their credibility, character, integrity and behaviour patterns left a cricket field space for aspersions.
Although the Judge ought not to have conducted a mini-rape trial in the first place (based only on statements), he failed to observe the power relationship that existed between the applicant and the complainant, as well as the absolute necessity of evaluating this.
As I said earlier, there can be jurisdictional basis for deeming it so in the first place – a remarkably fatal act on his part.
Whose determination?
Since we accept that the sufficiency of the evidence plus the public interest is necessary in advising prosecutors one has to ask: Who is making the determination – The DPP/police or a Judge in chambers? In this particular case, it is surely the duty of the DPP, and it is the duty of the judge when deciding or instituting criminal proceedings to determine whether the DPP may have acted ultra vires and or violated the constitution or any other law. Nothing else!
But the Judge, having condemned outright the complainant and the doctors and accepted the credibility of the applicant and his friends (Thom etc), it was now time to deal with the competence, rationality and reasonableness or lack thereof of the DPP’s action. This starts on page 42.
At page 55, Mr Justice Chang states “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.” Further “it is clear therefore her decision to prosecute was unlawful in that she took into consideration that which was irrelevant” (page 55).
What the judge concluded, to sum up, is that evidence reviewed by the DPP was irrelevant, therefore insufficient, therefore legally flawed, therefore unlawful to advise prosecution, therefore application for writs meritorious, therefore granted. This entire application in the end rested on a difference of opinion between the Judge, who went outside of his jurisdiction, and the DPP on the sufficiency of evidence in a potential rape case.
The construction of this logic and the journey needed to traverse it to arrive at it is truly amazing. It involves conducting two mini-trials in Chambers – one of rape and the other extortion, destroying the credibility of the complainant, attacking the competence of the DPP, usurping her functions and dealing with matters reserved exclusively for a judge and jury in a criminal trial process.
The Judge also applied the important imported but inapplicable test of “realistic prospect of prosecution” and set himself up as the sole arbitrator of what evidence could and would have been presented in court had there been a criminal process, and concluded that there was no realistic prospect of prosecution. None of these issues addresses whether the DPP broke the law or violated the Constitution which are the only criteria in Guyana for granting certiorari against the DPP.
It never occurred to the Judge that the applicant, having admitted to sexual intercourse in a deal where he only delivered cash plus midnight chowmein from a city roadside stall, had absolutely no consent: a promise of return of a cell phone having been the centrepiece of any such deal.
In the Sexual Offences Act, the position is pellucid: (1). No agreement equals no consent. (2). No consent equals rape. But all of that was for a court to deal with. The judge preempted such considerations.
Having been distracted by the mini-rape trial he conducted, and by the question of extortion in another potential case, the Judge lost sight of the legal requirement that such orders can only be granted in “highly exceptional cases,” “only rarely,” and “rare in the extreme,” and in any case, they must be captured by the narrow criteria set out in Article 232 (8) of the Guyana Constitution.
The final determination that the DPP had a different evaluation of the statements from that of the Judge cannot be deemed a highly exceptional circumstance if indeed there was a difference of opinion on the evidentiary sufficiency of the statements. This circumstance would not be captured by Article 232 (8). In the first place, it ought not to have been enquired into. But if the Judge felt that way, that is all the more reason why this matter should have gone to trial, especially since the public interest also required it and the elements of no-consent and rape were so glaringly apparent.
This is a bad decision that should be appealed in order to clarify all the relevant issues that it throws up. It is dangerous for this decision to remain the law of the land. Then any Tom, Dick and Harry with power, clout, influence and wealth can approach the court and undermine the constitutional authority of the DPP, denying victims their day in court and the prosecution of sexual and other serious crimes, including those against the state.
Attorney General
The press reported that the Attorney General appointed himself Advisor to the DPP and advised against the possibility of appeal, erroneously treating the matter as one hinged on criminal law. This is fundamentally flawed and badly conceived.
First of all, under Article 112 of the Constitution the Attorney General is the “principal legal advisor to the Government.” The DPP is not part of the government and the issues raised in the application for writs touch upon administrative and constitutional law and therefore are appealable.
Conclusion
To deny an appeal on a matter of such gravity is to rest the country’s jurisprudence on a dangerously weak foundation. It concedes to a single judge the final word on a matter of fundamental constitutional importance and that whatever he decides is final in law. To sum up therefore:
1. The Judge erred in subjecting the DPP’s advice to tests not provided for in the Constitution.
2. He conducted a mini-rape trial and enquired thoroughly into a potential extortion case, which he had no jurisdiction to do.
3. He gave the credibility and character of the complainant unfavourable treatment while the opposite was the case in relation to the applicant who had his own antecedents.
4. He failed to recognise the supremacy of, and to confine himself to, the Constitution in Article 232 (8) failing in the end to identify the violation of the Constitution or other law.
5. On the basis of his flawed conduct of the hearing of the application, he presumed to give directions to the DPP contrary to article 187.
6. In his 65-page decision he failed to adequately apply the definition of “consent” and “rape” as provided in the Sexual Offences Act.
7. He failed to identify the “rare and exceptional circumstances” that required the court’s intervention, in the end alluding to a difference of opinion in evaluating evidence (statements).
Finally, I note letters to your columns by attorneys-at-law Jerome Khan, Robin Hunte and Vic Puran, all supportive of the Judge’s decision. By their superficiality, these letters do an injustice to the matters at issue. They are no more than a show of solidarity with Justice Chang by practitioners rather than a proper examination of a major decision capable of inflicting serious harm to the country’s jurisprudence.
