While saying that the High Court has jurisdiction to hear former Attorney-General Anil Nandlall’s challenge to the charge against him for the alleged fraudulent conversion of law reports, Chief Justice (ag) Roxane George-Wiltshire SC yesterday also held that the charge is correct in law and that he has failed to establish that a constitutional breach has occurred.
The ruling left Nandlall dumbfounded.
He said the hearing was set aside only to rule on the jurisdiction aspect of the case and nothing more. Nandlall added that he intends to appeal the decision and apply for a stay of the Chief Justice’s ruling.
“What I find troubling is that we didn’t get an opportunity to address her on the evidence. All we got an opportunity to do was to persuade her that this court has jurisdiction to review the magistrate’s ruling on the no-case submission and we persuaded her because she ruled that she has jurisdiction and that is where we should have stopped and then she ought to have invited us to address her on the evidence after we produced the magistrate’s court evidence,” he told reporters shortly the Chief Justice handed down her ruling, which brought the case to an end.
Early last December, lawyers for Nandlall moved to the High Court to have the charge laid against him by the state thrown out, while also asking for a stay of the pending Magistrate’s Court proceedings until a decision is made.
In citing Magistrate Fabayo Azore for errors made during his trial up until then, Nandlall’s attorneys argued that the magistrate erred in law when she overruled his submission that the offence of “Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01” is not known to the Laws of Guyana and thereafter called on him to lead his defence.
The state, however, contended that the charge was properly instituted.
Nandlall yesterday told the media that he had “won and lost” at the same time. He said that he was surprised by the ruling because the judge went beyond the jurisdiction aspect. “That’s all that we set out to do and we did persuade her that she has jurisdiction because she ruled that she has jurisdiction to review the magistrate’s court ruling and that is the only question we were asked to address, but the learned judge [has] decided the entire case,” he said, while stressing that all the parties in the case were invited to make submissions on the court’s jurisdiction.
Later, on his Facebook page, Nandlall said the judge’s dismissal of the “entire” case was unjust. “The right to a fair and adequate hearing is both a principle of natural justice as well as a fundamental right guaranteed by the Constitution,” he stressed.
Superintendent Trevor Reid, who is attached to the Special Organised Crime Unit (SOCU), and Magistrate Azore, were listed as the respondents in Nandlall’s application.
When the case was called earlier this month, Reid’s attorney, Leslyn Noble, had argued that the court has no jurisdiction to hear the matter given that the case before the lower court was at an interlocutory stage.
The proper course, she had argued, would be for the matter before the lower court to first conclude, before the Supreme Court can entertain any application for judicial review. Noble, who cited case law authority, pointed out that the magistrate would have already, based on the evidence before her, established a prima facie case against the applicant when she called on him to lead his defence, and so the matter should be made to continue to its end.
Attorney Devindra Kissoon, part of the battery of lawyers representing Nandlall, argued however, that steps could be taken beforehand to prevent a breach which is anticipated.
Submissions on the point of jurisdiction were completed on that occasion and Justice George-Wiltshire indicated that she would deliver her ruling on that issue on January 21st.
In her 30-minute oral ruling yesterday, the judge also decided on other aspects of the case. The judge said that the High Court has supervisory jurisdiction to intervene but added that such jurisdiction should only be exercised in “limited and extreme circumstances” and should not be seen as a “routine” occurrence. She went on to say that in the circumstances, the applicant has not established what constitutional breach he was exposed to.
Justice George-Wiltshire then proceeded to discuss the charge. The judge said even though the charge is an offence that is not known in the UK, it is a proper charge under Section 165 of the Criminal Law Offences Act of Guyana. She further stated that simple larceny and larceny by bailee are two separate charges, the former is found under Section 164 and the latter under 165. In this regard she pointed out that the charge laid is “not bad in law.”
Further, Justice George-Wiltshire posited that there is no need for the records of proceedings in the Magistrate’s Court to be produced in the High Court as Nandlall has not established that he is experiencing a breach of his fundamental rights.
Costs were awarded to both of the respondents.
Through his attorneys, Nandlall contended that the decision made by the magistrate to call upon him to lead a defence was contrary to, and in violation of Articles 40, 144(4) and 149(d) of the Constitution of Guyana, unlawful, illegal, without and in excess of jurisdiction, erroneous in law, unreasonable, null, void and of no effect.
He noted in an affidavit that while the particulars of the charge allege that between the 18th day of May, 2015 and the 29th day of May, 2015, that he was the Attorney General and Minister of Legal Affairs and in that capacity he was a bailee of 14 Law Reports of the Commonwealth, in fact, during this period, he did not hold either position and therefore could not have been the bailee.
He said that he learnt through the press of a special audit into the said Law Reports and on 16th November, 2015, he wrote the Auditor General after being contacted for a response in respect of the matter.
Nandlall pointed out that although the Auditor General never implicated him in any wrongdoing in the 2012, 2013, 2014 and 2015 Auditor General’s reports, he was charged on April 27th, 2017.
According to him, his attorneys presented “copious” written submissions in support of the contentions made and the magistrate in a “one-sentence ruling” overruled those submissions and called upon him to lead his defence.
In the fixed date application, Nandlall’s lawyers had asked for a declaration that the charge is an offence unknown to the law, rendering it unlawful, illegal, null, void and of no effect and that the magistrate has no jurisdiction to hear or continue to hear and determine it; an Order or Writ of Certiorari quashing the charge; a declaration that the magistrate committed an error of law in ruling that the prosecution established a case against him; a declaration that the magistrate committed an error of law by overruling the applicant’s no-case submission in respect of the offence; and three Orders or Writs of Certiorari quashing the decisions made.
