The Guyana Court of Appeal yesterday set aside the conviction and sentencing of Registrar of Deeds Azeena Baksh, who was found guilty last year of paying herself just over $4.5 million in gratuity, on the grounds that the prosecution had failed to prove its case beyond a reasonable doubt.
In delivering the court’s decision, Justice of Appeal Dawn Gregory stressed that it was the prosecution’s duty to prove the case beyond a reasonable and not for Baksh to prove that she was not entitled to the gratuity she paid herself as a Judicial Service Commission (JSC)-appointed employee.
Baksh, through her lawyer, Nigel Hughes, had mounted an appeal asking the appellate court to reverse, set aside and/or discharge Magistrate Leron Daly’s ruling and enter judgment in her favour. Almost three years after being charged with fraudulently authorising payments to herself amounting to just over $4.5 million, Baksh was found guilty of the offence last year March.
According Justice Gregory, who along with acting Chancellor of the Judiciary Yonette Cummings-Edwards and Justice of Appeal Rishi Persaud heard the appeal, during the trial in the magistrate’s court it had to be established what Baksh’s true status was in relation to her entitlement and her gratuity. This, she said, was necessary to prove that she in fact obtained her benefits falsely.
Her terms of employment had to be proven relevant for her for the gratuity during that period and the court found merit in Baksh’s complaint that this element was not sufficiently proven.
In making her decision, the magistrate found that in the absence of a signed contract and the fact that Baksh knew that it was unsigned meant she knew she was not a contract worker but she falsely represented herself as a contract employee.
However, Baksh argued the absence of a contract was insufficient proof that she falsely and fraudulent obtained benefits to which she was not entitled.
The Court of Appeal agreed with this argument, pointing out once again that the prosecution did not discharge the duty placed on it to prove beyond a reasonable doubt and, therefore, Baksh’s status was not established.
Justice Gregory said that the court considered that had the magistrate considered Baksh’s unsworn statement, she may have or may not have come to the conclusion she came to. The Appeal Court recognised that Baksh’s statement in her defence was similar to what she had told the Human Resources Manager, an explanation that was considered by the magistrate in her exchange with the prosecution. However, Justice Gregory said the court would allow that matter to rest there, having regard to what the prosecution was required to prove and the fact that no duty reposed on Baksh to prove her status.
In the Magistrate’s Court, Baksh had denied the charge which stated that between May 1st, 2014 and January 31st, 2017, while an appointee of the JSC she caused or procured valuable securities to the sum of $4,534,480 to be delivered to her Bank of Nova Scotia account for her own use and benefit by pretending that she was a contracted employee of the Deeds and Commercial Registries, with intent to defraud.
At the conclusion of her trial, Magistrate Daly had found that there was sufficient evidence to back the prosecution’s case, thereby finding Baksh guilty as charged.
The magistrate spared Baksh jail time and instead ordered her to make full restitution of $4,534,480 to the state.
Baksh, had been granted three months to pay the money in full but before leaving court on the day of her conviction, she was ordered to make the first payment of $1,133,621.
