Acting Chief Justice Ian Chang yesterday instructed state prosecutor Naresh Harnanan to produce the statements used by Director of Public Prosecutions (DPP) Shalimar Ali-Hack to advise that a rape charge be instituted against Police Commissioner Henry Greene.
The request was made in the High Court as the proceedings began on the applications by Greene for the DPP’s advice to be quashed and to bar the police from instituting the charge against him. The court has granted temporary orders to Greene. Neither the DPP nor Greene was present at yesterday’s hearing.
Harnanan, who entered an appearance for the DPP in the matter yesterday, indicated that an affidavit in answer to Greene’s application was submitted, in which Ali-Hack argued that she acted in accordance with the law.
However, after looking over the file, Justice Chang indicated that he wished “to review the statements on which the advice was made”. Harnanan said the statements were a huge bundle but would be filed as a supplementary affidavit with the information that the court was now requesting.
“There must be some explanation as to how she arrived at her decision,” Justice Chang said, while adding that the DPP apparently believes she is not subject to review. Harnanan, at this point, requested time to prepare the supplementary affidavit.
The case will be heard again on February 27, when the court should be in possession of the supplementary affidavit and the DPP’s analysis of how she arrived at her decision.
Two weeks ago, Chang ordered that an Order or Rule of Nisi of Certiorari be issued and directed to the Director of Public Prosecutions (DPP) “quashing her advice” given on or before February 3 to acting Commissioner Leroy Brummell and Crime Chief Seelall Persaud to institute a rape charge unless cause is shown. According to the court order, seen by this newspaper, it was further ordered that the institution of a charge of rape on the advice of the DPP be prohibited unless cause is shown.
Ali-Hack, in her affidavit in answer to Greene’s application, argued that the advice provided to police was based on the evidence in the file and “more particularly, the statement made by the victim (name stated)… as well as statements by the Counsellor and Child Protection Officer from Help and Shelter, Carol Inniss-Baptiste, Dr Dalgleish Joseph and Dr Mc Rae.”
She further argued that the applications made by Greene should be struck out, saying they had no merit, were premature and unconstitutional. She noted that the main issue was whether the woman consented to having sex with Greene and “since this is an issue of fact as to who should be believed as credible, this credibility has to be tested by cross-examination and is ultimately for a jury’s determination.”
It is also Ali-Hack’s contention that there is sufficient evidence to institute a rape charge against Greene and that she has acted in accordance with her constitutional duties under Article 187 of the Constitution and as such the advice “to institute criminal proceedings against the applicant is in accordance with judicial principles and is rational, reasonable, fair, lawful and constitutional.”
She added, “It is to be assumed that the DPP will act in accordance with judicial principles, unless there is evidence to the contrary; the applicant has not provided any evidence to the contrary.”
Ali-Hack denied all averments and allegations in Greene’s affidavit in support of his motion and noted that a lot of the contents were totally irrelevant to any allegation of “irrationality, unreasonableness, unfairness, unlawfulness or unconstitutionality on the DPP’s part against the applicant, who advised that based on statements in the file there is sufficient evidence for a charge of rape to be instituted.”
She opined that there is no basis for the orders being granted by the court. “There has been no irrationality, unreasonableness, unfairness, unlawfulness or unconstitutionality on the DPP’s part. Neither has there been any allegation or evidence to support any contention of irrationality, unreasonableness, unfairness, unlawfulness or unconstitutionality,” she said.