Amidst fears that Muslim scholar Nezaam Ali will not face a trial in the absence of key documents which mysteriously disappeared from nine files, several legal minds are confident that the case can be salvaged by a thorough investigation and the introduction of secondary evidence.
This newspaper reported last week that the mother of three of the boys allegedly raped by Ali in the company of an official from the Child Care and Protection Agency (CCPA) visited the Supreme Court to check on the case. A clerk showed them the case files but the medical certificates of the boys along with their birth certificates were missing.
The woman who is also a Muslim said she was made aware that the documents were missing several months ago and she had tried unsuccessfully to verify this information. She now fears that the matter is in limbo with this new development and also questioned whether the original copies of the medical certificates, which are integral to the case, can be located.
A group of child rights advocates have since called for an investigation into the disappearance of the documents.
Danuta Radzik for Help and Shelter, Karen de Souza for Red Thread, Patricia Sheerattan-Bisnauth for Guyana Responsible Parenthood Assn, Andaiye and Vidyaratha Kissoon in a letter published in this newspaper last week said this development “warrants an immediate and thorough investigation, including enquiry as to all who had access to the files and thus the opportunity to remove evidence.”
The activists stressed no one must be exempted from the investigation.
“The fact that this sexual offence case has languished in the court system for so many years, in effect denying these 9 young child survivors of sexual assault their right to a fair trial within a reasonable time, is a violation of the Convention on the Rights of the Child, which Guyana has signed and ratified,” the letter stated. Ali was charged in 2012 and was committed to stand trial the following year. Shortly after the committal, his lawyer Nigel Hughes filed an action in the High Court to have the committal overturned. This was rejected by the court last year and it was ruled that the committal will remain.
According to the letter, the Sexual Offences Act paper committals provisions have been under appeal for a number of years since former (now retired) acting Chief Justice Ian Chang twice ruled in favour of the accused in two sexual offence cases and found that the provisions violated the constitutional right of those charged with sexual offences to confront their accusers. One of these accused, the letter said, was Ali.
“It is well known that rape and other sexual offences leave survivors physically and psychological traumatized, many never fully recovering from the brutality and horror of what has been perpetrated against them. The fact that these nine child survivors now stand to be denied their right to justice is in itself criminal, points to corruption in the court system and exposes Guyana as a country where access to justice and justice itself can apparently be perverted by money, power, access and influence,” the letter said.
The child rights activists made it clear that they will not stand by and allow the rights of Guyanese children to be trampled on by the executive, legislative or judicial branches of the state. “We stand in solidarity with these nine boys and all other child survivors of sexual offences who continue to be denied justice and the right to a life free from violence,” the letter said.
A call was made for UN agencies in Guyana, particularly UNICEF and all rights organizations to speak out publicly against the violation of the rights of child victims of sexual violence and to do all in their power to ensure that such rights are effectively protected.
The aggrieved mother has told this newspaper that after it was realized that the documents were missing the clerk was asked what the next step was and he informed that the Registrar will have to make a note and send the files to the Chambers of the Director of Public Prosecutions (DPP). The woman said that based on her understanding the DPP would then send the files to court but she was not told for what reason.
She expressed certainty that the documents were removed after Ali lost his bid to have the High Court overturn his committal.
Sunday Stabroek spoke to several prominent authorities who all concluded that Ali can still face a judge and jury. It was pointed out to this newspaper that key documents and pieces of evidence disappear from case files often.
Based on what was explained that DPP does not have to get involved at this stage since Ali has been committed. The man now falls within the jurisdiction of the High Court.
One lawyer explained that the Court has the power to call before it the magistrate who presided over the case, the clerk who dealt with the matter, the clerk of court and the prosecutor for an explanation as to what has become of the documents.
According to the attorney, the court can go through a process to ensure that replacement copies are sourced and these become secondary pieces of evidence.
Another attorney who has many years of experience in handling criminal cases told this newspaper that “there is always a way to rectify situations like these.” She said that one can attempt to retrieve copies of the missing documents from the source and in so doing certified copies, called secondary evidence can be admitted in the case.
The attorney while stressing that there are many options available to the court, said that the doctor who examined the children can be called before the court to testify about his finding. Asked if it is expected that the doctor will remember the particulars of this specific case, the attorney said that doctors are supposed to have well-kept notes. It was explained that medicals sometimes go missing and the attending doctors testify before the court.
In a case where the doctor no longer resides in Guyana, the attorney said, the law provides for video evidence via skype.
“An investigation must be done to trace the movement of the file. Once the documents were already admitted as exhibits, the prosecutor can lead secondary evidence,” the attorney said.
Based on all that was said to this newspaper it would appear that it was the Magistrate’s Court and its officers along with the police prosecutor who had the most access to the files.
Registrar of the Supreme Court Susanna Lovell, when contacted on Friday, declined to comment. Newly appointed Minister of Social Protection Amna Ally when approached at a function on Friday said she was unaware of the matter this newspaper was referring to and that she can be contacted this week for a comment.
The charges alleged that Ali of 268 Section ‘C’ 5 South Turkeyen, during December 2011 and January 2012, being a teacher attached to the Turkeyen Masjid, engaged in sexual activity with the children by abusing a position of trust. He was placed on a total of $1,300,000 bail.
The allegations of the abuse first came to light when CC&PA received an anonymous tip and officials there began an investigation that led them to the boys, who were then between the ages of four and ten.
The police were informed of the situation and after the boys were examined, Ali, who was employed with the Central Islamic Organisation of Guyana, was arrested, released on station bail and subsequently charged. Ali was also sent on leave, pending the outcome of the case.
