Treason case was based solely on conversations, ruling says

– charge was defective

Acting Chief Magistrate Priya Sewnarine-Beharry said the recently dismissed treason case was based solely on conversations between the accused and the prosecution’s main witness and more so the charge was defective as the substance of the overt acts allegedly committed was not expressly laid out.

This is according to the magistrate’s 11-page ruling, which was dated March 28 and in which she outlined clearly why she discharged the accused: GDF Major Bruce Munroe, his wife Carol Ann Munroe and ex-soldier Leonard Wharton.

The trio was arrested and charged on December 28, 2010 after being accused of plotting to level war within Guyana to force the president out of office, in order to compel the Government of Guyana to change its measures. The offence was allegedly committed between December 1, 2009 and December 16, 2010 at Soesdyke, East Bank Demerara.

The government had expressed its dissatisfaction with the outcome of the matter. This newspaper has since been reliably informed that Director of Public Prosecutions (DPP) Shalimar Ali-Hack is still looking at the matter and has a six-month period to make a decision as to how she will proceed.

A source explained to this newspaper that based on the law, the DPP rather than appealing the decision, has the power to direct the magistrate to reopen the case and commit the accused to stand trial in the High Court. The source stated that once all the evidence is taken from the witnesses in court, the DPP has the power to intervene.

Following the completion of the case, it was explained, all depositions (records of the evidence taken in court) were sent to the DPP for her to review and make her decision.

The magistrate, in her ruling, stated that the counsel for the accused had argued that the offence as set out in Section 314 (a) of the Criminal Law makes it clear that the offence is created not merely by the formation of the intention but mandated that there must be overt acts which manifest the intention.

It was stated that the lawyer had also submitted that the omission of the critical element of “manifestation of the intention by an overt act”, in the particulars of the offence in the charge is fatal to the charge. “Put another way, the absence of any reference to any overt act in the particulars of the offence and/or under a separate heading as required by the criminal pleadings was fatal because a critical element of the offence is not alleged in the particulars of the offence,” the ruling stated.

It was further stated that the counsel for the prosecution submitted in reply that the proceeding was a preliminary inquiry and not a trial. The ruling said that in support of the argument the prosecutor advanced that all defects in substance and form in a complaint and variances between the complainant and the evidence are immaterial and no objection can be taken or allowed in respect of such matters.

He argued, the ruling said, that the submissions by the counsel for the accused were misconceived because “he interposed into the preliminary inquiry proceedings the learning on the indictment” and further submitted that the entire argument that the indictment cannot be amended is flawed. He based his argument on this issue on Section 318 of the Criminal Law (Offences) Act, the ruling stated.

Overt act

The prosecution, according to the ruling also said that the counsel for the accused erroneously believed that the overt act had to be a physical act and that the particulars had to stipulate expressly the words “overt act”.

The ruling said the counsel for the prosecution submitted that the overt act impugned against the accused is that they intended to levy war within Guyana in order to force to depose from his office the president or in order by force to compel the Government of Guyana to change its measures. He argued further that the overt act in this case is the “intention” and the fact that the particulars did not describe the intention as the overt act did not prejudice the accused. According to the ruling, he submitted that the treasonous acts must be set forth in the particulars as overt acts and not particularized to be overt acts.

It was stated that the issue, which must be determined by the court, is whether the particulars of the offence as laid in the information upon oath are defective and if found to be so can be amended. The ruling said that a useful starting point would be the statute before reference was made to Section 314 of the Criminal Law Offences Act Chapter 8:01.

“The wording of the statute appears to be clear. A person who forms an intention to affect any purpose in Section 314 (a) and manifests such intention by any overt act is guilty of felony,” the ruling pointed out adding that there must be an intention to affect a purpose in Section 314 (a) and the manifestation of that intention by an overt act.

The ruling then went on to explain what exactly is an overt act and if there is a requirement for the overt acts to be stated in the particulars of the charge. Several legal cases were used to deal with these two issues.

The ruling stated that from the authors of Archbold Criminal Pleading Evidence and Practice 2003 it is clear that indictment must apply equally to the charge laid in the information upon oath as the trial of a person accused of committing an indictable offence begins at the preliminary inquiry stage.

Based on Archbold, the ruling said, the overt acts upon which the prosecution intended to rely must be expressly alleged in the charge, in the information upon oath or the indictment; the overt acts of the alleged treason must be set out separately from the particulars of the offence; the evidence must be applied to the proof of the overt act and not to the proof of the principal treason; no evidence may be admitted of any overt act not laid in the charge, in the information upon oath or indictment amounting to a distinct independent charge, unless it be expressly laid in the charge, in the information upon oath or indictment; no evidence is admissible of any overt act that is not alleged unless it affords direct proof of the overt act that are laid; words spoken may constitute an overt act if relating to a treasonable act or design; where words are laid as overt acts, it is sufficient to set forth the substance of them and there is no need to set forth whole of the evidence, however the charge should be reduced to a reasonable certainty so that the accused may be apprised of its nature and may be prepared to answer it.

“From the evidence led by the principal prosecution witness Quincy Critchlow there was no physical preparatory acts. The prosecution’s case is therefore premised and or hinged on the words spoken by the accused to the witness,” the ruling said.

It was noted that there is no need for the words “overt act” to be expressly set out in the particulars but there is need to set out what the thrust of the overt act was.

“From the particulars set out in the charge it is patently obvious that there is an incantation of the first part of the charge. But there are no references to any ‘external act that may be sufficient to manifest such intention and purpose,’” the ruling said.

Further, it was stated that the substance of the overt acts was not expressly laid out in the charge. The effect and purport of such an omission, it was stated, would appear to be that the charge as laid is bad because there is no offence known to the law as “intending to levy war within Guyana in order to force to depose from his office the President or in order by force to compel the government of Guyana to change its measures simplicitier”.

The magistrate concluded that the charge laid was defective.

Touching on the application by the prosecution for the charges to be amended, the ruling stated that the procedure in preliminary inquiry proceedings is exclusively set out in the Criminal Law (Procedure) Act and where the statute is silent on a particular issue the court must look to the legal principles established by case law. These cases, it was noted, have illustrated that the principles of law as they relate to amendment of charges apply equally to all charges, be they laid in a complaint without oath or an information upon oath.

The ruling said that both sides of the bench conceded in short that if the facts laid out for felony established a different kind of treason that alone will not vitiate the charge. This provision, it was stated, obviously applies to a valid charge and not to one that is found to be defective.

It was explained that an information or charge or complaint may be defective for a variety of reasons such as inaccuracies in date or place which do not conform to the evidence or when the wrong statute is cited or incorrectly named or the wrong section stipulated.

The magistrate outlined a number of prejudices to the accused. It was stated that the accused were incarcerated since December 2010 and that the PI only commenced in February 2011; the prosecutorial authorities were solely responsible for inordinate delay in the matter; the accused would have been deprived of the acts upon which the prosecutorial authorities intended to rely; they would have been prejudiced in their defence because their defence must be applied to the overt acts; the accused would have been deprived of the opportunity to legally object and have excluded inadmissible evidence, that is to say evidence that was not referable to the overt acts laid and which was prejudicial to the accused.

The ruling said that out of an abundance of caution, the counsel for the prosecution made an application to amend the particulars of the charge to include, “by conspiring with each other and with other person or persons unknown to commit acts of destruction of public property by explosives, bombs, grenades and to kill, injure and maim persons by the use of noxious gas and by the use of sniper”.

It was noted that even though the court has wide powers of amendment “it has been held that the power available to the court to grant an amendment does not authorize the transformation, by amendment, of an information which on the face of it disclosed no offence into one disclosing an offence”.

The ruling stated that the court found that the particulars of the offence “as laid in the information upon oath or charge void ab initio for it does not disclose an offence known to law and therefore cannot be amended. A committal must be premised on a valid charge. This court finds it unnecessary to deal with the other submissions since the case hinges on the sole ground of the charge being bad in law.”

Letter to the army

Lawyer for the accused Nigel Hughes told Stabroek News recently that he had dispatched another letter to the Guyana Defence Force outlining concern about a statement that Critchlow (the chief witness) made during his testimony.

The letter dated April 18, stated “We have now secured a certified copy of the deposition of Critchlow…taken on 24 February….A copy of the deposition signed by Mr Critchlow is enclosed for your benefit”.

Specific reference was made to the twelfth page where Critchlow testified, “I engineered an operation to trap three black people”.

Hughes in the letter repeated his clients’ concern about the statement made by Critchlow.

The army had sent an acknowledgment to an earlier letter on April 10 stating that the allegation will be investigated as soon as “it [the army] obtains a full copy of the court transcript”.

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