While acknowledging that the actions of the Director of Public Prosecutions (DPP) are reviewable, Solicitor-General (SG) Kim Kyte-Thomas on Thursday argued that former Finance Minister Dr Ashni Singh and former National Industrial and Commercial Investments Limited (NICIL) head Winston Brassington have failed to make a case for the termination of the misconduct charges that have been laid against them.
Kyte-Thomas made the argument during submissions on the state’s behalf to acting Chief Justice Roxane George, who is hearing the challenge mounted by Singh and Brassington to the misconduct charges that have been laid against them by the DPP.
They have been jointly charged with three counts of misconduct in public office over the sale of three tracts of government land on the East Coast of Demerara, between December, 2008 and May, 2011. In one instance, it is alleged that the property was sold below market value, while in the other two the deals went ahead without proper valuations of the land.
In their application challenging the validity of the charges, Singh and Brassington have sought to have the DPP’s decision to institute the charges against them reviewed and ultimately quashed.
However, citing case law, the SG on Thursday argued that while the DPP’s actions can be reviewed, courts are generally reluctant to interfere and would sparingly do so, while noting the high bar which must be crossed by applicants.
She said the onus is on the applicants to cross that bar and thereafter the court would have to be satisfied that it should intervene.
Against this background the SG said Singh and Brassington have failed to cross the bar since the grounds on which they are hoping the court would intervene have not been substantiated.
She said that though the applicants have alleged that the charges instituted against them by the DPP were influenced by politics, they have failed to so prove.
She said the court should ask itself whether any of the factual issues of the case could not be dealt with/answered in the criminal trial before the Magistrate’s Court, where the men had been charged.
Subsequent to being charged, the men applied to the High Court to have the proceedings against them in the lower court stayed, pending their challenge to the charges.
Kyte-Thomas said that the particulars of the charges with which Singh and Brassington have been arraigned are matters to be determined by a magistrate during a trial. Regarding the contention that Brassington never signed an agreement of sale and, therefore, cannot be held culpable, the SG said that those are all issues to be determined by a magistrate after the prosecution would have presented its evidence.
Noting from court documents that Singh and Brassington belonged to a board at the time the alleged land sales were made, Justice George asked Kyte-Thomas if the entire board could be charged.
The SG, however, said that charges were laid only against the two men because the file presented to the DPP following investigations would have indicated that they were the culpable two persons.
Emphasising that the High Court was not the forum, the SG said that such issues are for a magistrate to decide during a criminal trial.
She said, too, that contrary to arguments by counsel for the applicants that they did not personally benefit from the sales, this is not an element which the prosecution has to prove; rather, it has to prove that there was a breach of “public trust.”
She added further that from the file presented to her, the DPP found the latter and all this would have informed her decision to institute charges.
The case continues on November 7th, when the SG will continue with her arguments.
It is alleged that Singh and Brassington sold a tract of land, being 4.7 acres at Plantation Liliendaal, East Coast Demerara, which was the property of Guyana, for the sum of $150 million to Scady Business Corporation, while knowing that the property was valued at $340 million by Rodrigues Architects Limited.
It is also alleged that by way of agreement of sale and purchase, they acted recklessly when they sold a tract of land, which was a portion of Plantation Liliendaal, Pattensen and Turkeyen, East Coast Demerara, being 103.88 acres, to National Hardware Guyana Limited for $598,659,398 (VAT exclusive), without having a valuation of the property from a competent valuation officer.
It was also alleged that they acted recklessly when they sold a 10-acre tract of land at Plantation Turkeyen, which was the property of Guyana, for the sum of $185,037,000 to Multicinemas Guyana Inc, without procuring a valuation of the said property from a competent valuation officer.
Their attorney, Anil Nandlall, is contending that his clients were at all times acting as a part of collective—Singh as a member of Cabinet, and he and Brassington as members of a Board of Directors. “They were simply carrying out the decision of these two agencies,” he has stressed.
