The Guyana Bar Association (GBA) says that the recent “disparaging,” remarks made by Justice Sandil Kissoon, finding that attorney Stephen Fraser SC committed fraud on a Court; among other things can have a debilitating impact on the rule of law and diminish public confidence in the administration of justice.
The GBA statement did not name either Justice Kissoon or Fraser.
It said it views the statements as an “attack” not only on Senior Counsel Fraser, but on the entire Bar; even as it registers that the judge’s remarks have not gone unnoticed and said it wanted to also remind that “judicial restraint is always a prudent course of conduct.”
The case before the court from which the judge’s remarks emanated, surrounded a land matter he threw out, which Fraser had presented on behalf of his client, Deborah DaSilva DeSantos; whom the judge also removed as executrix to the land in question.
On Tuesday last, Justice Kissoon ruled that a marina and boating services property in the Essequibo sold to Antares Inc back in 2017 had been fraudulently sold below value by the daughter of the deceased to whom the property was willed as trustee of beneficiaries.
Justice Kissoon said that in on the fraud was lawyer for the daughter (the executrix), Fraser; while the record showed that the sale was to a company established after the testator’s death and staffed with immediate relatives of the executrix.
The Judge noted that as an officer of the Court, Fraser’s actions ought to be condemned in the strongest possible terms.
Fraser and his attorney Nigel Hughes have since rejected that he was ever involved in any fraud in the matter. They have since said that an appeal has been filed to the ruling.
Adding its voice of condemnation to what the judge had to say about Fraser, the GBA in a statement issued yesterday said that it was concerned and as matter of principle wanted to remind all of society that the disparagement of counsel by the public, fellow counsel and the Judiciary has implications.
According to the GBA, it has been known to: “have a debilitating effect on the rule of law; diminish public confidence in the administration of justice, be perceived as judicial interference; impede on the right to secure protection of the law; and prejudices the right to a fair trial from an independent and impartial tribunal.”
Norms and courtesies
The Bar Association said that the legal profession and by extension the administration of justice are guided by and rest on the adherence to a number of written and unwritten rules, norms and courtesies.
It said that the mutual respect passing between Bench and Bar is one such pillar on which the administration of justice rests, for it engenders public confidence in the system and that such confidence is undeniably imperative for the system to be effective.
According to the Association, “it is for this reason that statements by the Bench impugning the character of Counsel without due process must not be allowed to go unnoticed. We are further reminded that judicial restraint is always a prudent course of conduct.”
The GBA said it takes the statement of the sitting judicial officer as an attack not only on Fraser “whose repute is known to be beyond reproach,” “but on the entire Bar, for it shakes the very foundation on which our profession rests.”
“The character of Counsel is his/her most precious asset to himself, the profession and administration of justice. Any attack thereon causes immeasurable damage thereto,” the statement further added; before concluding, “We are reminded that judges are elevated from the Bar. Disparagement at all levels must therefore not be permitted to go unaddressed and will not be countenanced by the Bar.”
Hughes in his release had said that one of the most elementary principles of law and perhaps the foundation of several legal systems is the concept of natural justice and the right of an accused to be heard before the pronouncement of judgment or the findings of fact made by any court of law.
In the case of Dershanie Harrilall and others versus Deborah De Santos and others, the press release said that Fraser was neither a party to the action nor was he afforded any opportunity to be heard on any of the issues which Justice Kissoon proceeded to make adverse findings on.
“At no stage during the proceedings was any allegation put to Senior Counsel Mr. Fraser S.C.. No testimony was led by any witness of any involvement by Mr. Fraser S.C. in any aspect of the dispute which engaged the attention of the Honourable Mr. Justice Kissoon.
“It would appear that these matters escaped the deliberations of the trial judge who not only proceeded to make adverse findings inclusive of hostile comments on the conduct of the attorney but more disturbingly pronounced upon the conduct of Senior Counsel who was never afforded any opportunity to be heard on any allegations which were never put to him during the trial.
“This is a most unusual and unprecedented development in the jurisprudence of Guyana”, the statement from Hughes said.
The Claimants, who are beneficiaries of the estate in question, of Anthony DaSilva, raised allegations against the executrix of “self-dealing, breach of trust, malversation of office, dishonesty and fraud.”
As a result, the sale has been set aside and the daughter has been removed as executrix and has to pay $5,000,000 in damages for the fraud she has committed.
With the daughter’s removal, wife of the deceased, Dershanie Harrilall, has instead now been appointed Administratrix of her late husband’s estate.
