T&T SC criticises Justice Chang’s decision

Trinidad Senior Counsel Dana Seetahal says the effect of the ruling by Chief Justice Ian Chang  quashing the advice of the DPP to charge Police Commissioner Henry Greene with rape is that any accused person in Guyana can now go to court and seek a stay of a criminal charge.

In the Diaspora Column in yesterday’s edition of the Stabroek News Seetahal said of Justice Chang’s decision:  “The way is now clear for any accused person in Guyana to go to court seeking a stay of any criminal charge. One wonders what the CCJ (Caribbean Court of Justice) will say to this – if they get the chance.”

Dana Seetahal

Justice Chang’s decision has been widely criticized here for its entertaining of the challenge of the DPP’s advice to institute a criminal charge. While the jurisdiction of the court has not been denied, regional jurisprudence and a 2006 ruling of the UK Privy Council have underlined that exceptional circumstances must prevail for a challenge to the DPP’s advice to be entertained. Women’s groups and the former minister of human services, Priya Manickchand have also criticized the decision on the ground that it did not take account of Guyana’s modern sexual offences legislation as it relates to the complainant.

In her column which originally appeared in the Trinidad Express on February 24, 2012 and has been supplemented by an addendum in SN’s In the Diaspora column, Seetahal noted that the Guyana DPP like her  Trinidad counterpart has the power to institute criminal proceedings against any person before any court other than a court martial and this leads to a situation where the DPP may advise the police to institute a prosecution and “the police would do so”.

She noted that in a similar case in Trinidad in 2006 T&T Chief Justice Satnarine Sharma sought to block the laying of perversion of the course of justice charge against him which went all the way to the Privy Council and which in a seminal ruling  dismissed his appeal. Justice Sharma was charged shortly after in Trinidad.

Dealing with what she said were the bedrock principles emphasized by the Privy Council (PC) ruling, Seetahal  said:  “The first is that rule of law requires that the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of State but equally the holding of such an office cannot excuse conduct which would lead to the prosecution of one not holding such an office. The administration of justice must be, and be seen to be, even-handed. Further it is the duty of police officers and prosecutors engaged in the investigation of alleged offences and the initiation of prosecutions to exercise an independent, objective, professional judgment on the facts of each case.  It would be a grave violation of their professional and legal duty to allow their judgment to be swayed by extraneous considerations such as political pressure. “

Second, she said that the PC went on to say that judicial review of a prosecutorial decision “although available in principle, is a highly exceptional remedy: it is considered to be `rare in the extreme’” .  She said that the courts recognized the great width of the DPP’s discretion. Seetahal, the author of a criminal practice and procedure textbook used in Caribbean law schools, said the DPP’s latitude would “include a wide range of factors relating to available evidence, the public interest and perhaps other matters which [the prosecutor] may properly take into account. These are not susceptible to judicial review because they are not within the constitutional function nor the practical competence of the courts to assess their merits.”

Justice Ian Chang

She noted that in the final analysis, the PC advocated that all challenges to a prosecution should be entertained in a criminal trial or on appeal rather than attempting to block a charge. She stated that the PC said that apart from the safeguards available to the defendant in a criminal trial the court also has the power to deter proceedings which are an abuse of the process.

“Very importantly the PC held that there should be a reluctance to blur the executive function of the prosecutor and the judicial function of the court, and that the distinct roles of the criminal and the civil courts must be emphasized.

There had to be very compelling reasons to restrain a public officer from doing what she avers to be her public duty. One such circumstance could be the surrender of what should be an independent prosecutorial discretion to political instruction (or persuasion or pressure). Unless there was such evidence, any issues relating to the decision to prosecute should properly be raised in the course of criminal proceedings.  A criminal judge would be better placed to manage potential issues, such as whether the decision to charge was politically influenced or whether there is evidence fit to be left to the jury”, Seetahal , a former magistrate and senior state prosecutor said.

In the addendum to the February 24 column, referring to the decision of Justice Chang, Seetahal noted that Justice Chang had conducted a detailed analysis of the statements of the complainant and  Commissioner Greene and she described this as “more in the line of a defence counsel’s closing address” after which he stated that the prosecution had no reasonable prospect of success.

Seetahal, who served for eight years as an independent Trinidad senator, noted that Justice Chang had referred to the Privy Council ruling in his decision and had said that there was no “absolute fetter or absolute prohibition against judicial review of a decision to prosecute”. She said that although there is no known English case where even leave to challenge a decision to prosecute has been granted Chief Justice Chang “not only granted leave in this case but stayed the prosecution”.

Greene must go

Manickchand, now the Minister of Education, had taken a strong position against Greene in a comment to Stabroek News and had also expressed concerns about Justice Chang’s decision.

About Greene she said: “From his own admission he acted most improperly and in this instance he was discovered so he should leave willingly. I am not sure that he can do very much hereafter to enjoy the confidence of people generally and women in particular and his actions may have been a bad example for his juniors”.

“As far as it relates to the quashing of a decision to prosecute a rape charge, I am particularly worried about the implications of this decision on other prosecutions or intended prosecutions for rape,” Manickchand told Stabroek News about Justice Chang’s decision.

The minister believes that it is only in the most “exceptional circumstances that the court should exercise its discretion when the decision by the DPP is actually to prosecute as matters that an accused takes exception to can be addressed in or during the trial…”

She pointed out that because rape is hardly ever done at “high noon in the market square” any allegation of rape is almost always going to be the complainant’s word against the accused’s word and that is a matter to be fully tested in court.

Manickchand said that she prefers a jury of 12 reasonable persons to decide whose word they actually believe rather than a judge of a review court.

Women’s groups and NGOs have kept up pressure on the government and Justice Chang over the decision. There is high interest now in whether the DPP, Shalimar Ali-Hack will appeal Justice Chang’s decision.

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