Advancing their importance to the successful prosecution of their case against those charged with various offences stemming from alleged criminal conduct over last year’s elections results, the Director of Public Prosecutions and the Commission-er of Police are seeking to have the Statements of Poll (SoPs) and Statements of Recount (SoRs) made available for the trials.
Pursuant to a court order issued by the Chief Justice in January, the statutory documents of the March 2nd, 2020 General Elections are currently lodged for safe-keeping with the Registrar of the Supreme Court.
Respondents in two election petitions filed by the main opposition APNU+AFC, had asked acting Chief Justice Roxane George-Wiltshire SC to order the Guyana Elections Commission (GECOM) to lodge the documents with the High Court.
Following the unprecedented, protracted five-month impasse—from March 2nd to August 2nd, of last year during which a national recount of all ballots was conducted, the results showed that it was the PPP/C which had won the general elections with 233,336 votes over the coalition’s 217,920 votes.
Subsequent to the announcement, Chief Election Officer, Keith Lowenfield, Deputy Chief Election Officer Roxanne Myers, Region Four Returning Officer Clairmont Mingo, PNCR chairwoman Volda Lawrence, APNU+AFC activist Carol Joseph and a number of other GECOM staff were slapped with a barrage of fraud-related charges connected with the elections.
Those charges are still pending before the Magistrate’s Court, and have formed the basis of the request by the DPP and Police Commissioner for the SoPs and SoRs which they say are pivotal to proving their cases against the defendants.
In their fixed date application (FDA) to the High Court, DPP Shalimar Ali-Hack and Commissioner of Police (ag) Nigel Hoppie want the court’s Registrar Suanna Lovell, to be ordered to make the SoPs in her possession available for the Magistrate’s Court trial.
In their application dated April 16th which lists the Attorney General, GECOM and Lovell herself as Respondents, Ali-Hack and Hoppie (the Applicants) asked that Lovell be ordered to forthwith hand over the documents.
They said that they are seeking any further or other order which may be necessary to facilitate them lawfully obtaining certified photocopies of the SoPs and SoRs.
According to the FDA seen by this newspaper, Ali-Hack had advised and instructed the Guyana Police Force (GPF) to obtain copies of the documents as part of its “investigations and gathering of evidence for presentation in court.”
The SoPs and SoRs “are necessary for the fair hearing of the charges as they constitute relevant evidence for the prosecution to prove the commission of the offences which are charged,” the application states.
RoPA
It then goes on to contend that pursuant to the Representation of the People Act (RoPA), the documents are public records and as such no restriction such as privacy, privilege or secrecy applies thereto and that there should therefore be no restriction to the police obtaining such records.
The applicants note that in accordance with Section 50 of the Criminal Law (Procedure) Act, the Commissioner of Police and any member of the police force has the lawful right to collect and recover all documents and property which are relevant to the investigation and prosecution of any criminal offence.
Describing the documents as “relevant evidential material,” the applicants deposed that where such are held by any person or entity, and any question arises as to whether they should be handed over to the police, the Commissioner of Police and any rank authorized by him, Section 50(1) provides the statutory authority for an application to be made to a Magistrate “for a warrant to seize and recover anything upon it being shown on oath that there are reasonable grounds to believe that it will afford evidence to show the commission of an offence.”
The applicants point out that under Article 144 of the Constitution, the right to a fair hearing extends not only to persons charged with a criminal offence but to the prosecution as well. The “irresistible” implication they say, is that fairness is to also be extended to the prosecution.
Against this background, they argue that relevant evidential material ought not to be withheld from the prosecution representing members of the public in any criminal matter, since this affects the fair hearing which should be afforded to every criminal charge before any court.
