Some legal minds are of the firm belief that the Director of Public Prosecutions (DPP) should appeal the recent dismissal of 24 charges of larceny by a public officer that were laid against former Public Service Minister Dr Jennifer Westford and her former aide Margaret Cummings, while questioning why a technicality that rendered the charges against the former bad in law was not detected during the two years the matter engaged the court’s attention.
However, the attorneys, who asked not to be named, advised against the institution of fresh charges, while saying that doing so would be an abuse of the process.
The joint charges against Westford and Cummings, the Personnel Officer at the former ministry, stated that between the period October 19th, 2011 and April 28th, 2015, they stole a total of $639,420,000, belonging to the Government of Guyana, which they received by virtue of employment.
The money was said to have been requested for training activities to be conducted in the 10 administrative regions.
Following a police investigation and a review of the case by the DPP, the two women were charged in July, 2015.
Some of the 48 witnesses who testified during the trial could not recall these activities. However, Principal Magistrate Judy Latchman found last Friday that there was no prima facie evidence that Westford was a public officer at the time, as defined in the Interpretation and General Clauses Act. The magistrate went on to say that Westford was not appointed by the Public Service Commission but by the president, which does not make her a public officer. “In these circumstances, I find that at the material time Dr Jennifer Westford was not a public officer. Since all the charges against Jennifer Westford are for larceny by public officer, I find them all bad in law,” she stated.
As it relates to Cummings, the court did find prima facie evidence that she was a public officer, that she worked for Westford, that she collected the funds, and that she returned same to the minister’s office. Cummings’ name also appeared on the memorandums as the coordinator of the activities planned for the regions, however her signature did not. The magistrate said there was no evidence that Cummings agreed to coordinate the events mentioned on the memorandums and there was also no evidence that she was authorized to spend the cash and that she did so.
In light of the ruling, several attorneys told Stabroek News that it is now the responsibility of the DPP to ensure that the matter is “set right” and is properly put before the court.
Stabroek News made contact with the DPP’s Chambers to ascertain the way forward but was told that no one was available to speak as the DPP Shalimar Ali-Hack and Public Relations Officer Liz Rahaman were on leave. This newspaper was advised to call back next week when both women are scheduled to return to work.
One prominent attorney expressed the belief that the DPP could appeal. Another attorney suggested that the law allowed for the magistrate to find them guilty of simple larceny. “I don’t see why the magistrate could not have found them guilty for simple larceny,” he said.
He also questioned why no one researched the contentions about the charge, while pointing out that the onus is on the prosecution to ensure that the charge was right before proceeding with a trial.
The attorney stressed that if the prosecutor failed to prove that Westford was a public officer as indicated in the charge, “the magistrate has every right to dismiss it… It is a technicality. I feel that the magistrate may have been able to find them guilty of simple larceny.”
It was explained that while there are many occasions in larceny matters where the prosecution fails to prove that type of offence there is an option to find them guilty of a “kindred” offence.
According to the attorney, Westford and Cummings cannot be arrested and charged but rather the DPP could appeal the dismissal. “The prosecution could appeal but the appeal cannot turn the dismissal into a conviction. When it is a prosecutorial appeal, the most that could happen is a retrial but the defence will have a lot to say about that because the case is in jeopardy already and you can’t get double jeopardy,” he said, before informing that during the retrial the charge can be amended.
He said, too, that it would be an abuse to re-arrest them on a different charge. “It’s the same criminal conduct you are complaining of,” the attorney stressed.
About a year after the case first engaged the court’s attention, the police prosecutor was removed from the matter and a state prosecutor was assigned.
Attorneys had disagreed with the police initially leading the prosecution, saying that given that the case involved the alleged theft of state funds by a former minister, “you should really put your best foot forward.”
According to one attorney that this newspaper spoke with, both the police and the DPP seem more concerned with charging people than getting convictions as he has noticed persons being slapped with “weird “ charges which have no evidential support.
“To me they just want to charge people just to show that they doing something… many people are wrongfully charged in the beginning. Those that are correctly charged, they are not getting proper legal advice…prosecutors,” he noted.
Both Westford and Cummings are still facing charges of allegedly attempting to steal state vehicles and forgery. The charges against Westford allege that between July 17th, 2014 and June 23rd, 2015, while being employ-ed as a public servant by the Government of Guyana, she attempted to transfer several government-owned vehicles to herself and others. These persons include her husband, Gary Beaton, as well as Wayne Walker and Delroy Lewis. Cummings, meanwhile, is charged with forging several receipts to show that the vehicles were purchased by Beaton, Walker, Lewis and Westford.
