Chief Justice (ag) Roxane George SC yesterday rejected an application by gold dealer Saddiqi Rasul to block Magistrate Crystal Lambert from proceeding with her trial for allegedly defrauding the Guyana Bank for Trade and Industry (GBTI) of $900 million.
Weeks after Rasul was faced with six charges resulting from an investigation into the alleged fraud, the prosecution withdrew them and re-charged Rasul under a different section of the Criminal Law (Offences) Act.
As a result, Rasul’s lawyer put forward a plea of “Autrefois Acquit” but this was overruled by the presiding magistrate. It was as a result of this development that Rasul filed an application in the High Court to block.
“Autrefois Acquit,” according to the Merriam-Webster Law Dictionary, is a defendant’s plea stating that he or she has already been tried for and acquitted of an offence.
In an application filed in the High Court on May 29 by attorney Rinee Kissoon, Rasul asked for an Order or Rule Nisi of Certiorari directed to Magistrate Lambert to show cause why her decision, rejecting and/or overruling a plea of Autrefois Acquit raised by the applicant in relation to six charges of obtaining credit by false pretence contrary to Section 194 of the Criminal Law (Offences) Act, instituted against him, ought not to be quashed on the grounds that it was made in error of law, unlawful, made in bad faith, ultra vires, illegal, without any legal basis and without jurisdiction, all of which renders the said decision a nullity.
Rasul also asked the court to grant a Writ of Certiorari directing Magistrate Lambert to quash her decision, which was made and delivered on May 12, as well as an Order or Rule Nisi of prohibition directing the magistrate to show cause why she should not be restrained from proceeding to conduct a trial of the applicant and a Writ of Prohibition directed to the magistrate restraining her from conducting a trial.
Senior Legal Advisor Judy Stuart Adonis appeared in the proceedings for Magistrate Lambert, while former Chief Justice (ag) Ian Chang, who is the special prosecutor in the criminal case against Rasul, represented the Director of Public Prosecutions (DPP)/Guyana Police Force. Magistrate Lambert and the Director of Public Prosecutions (DPP)/Guyana Police Force were the respondents in the matter.
Rasul, 34, of Prashad Nagar, was charged on April 3 with six counts of the offence of obtaining by false pretence. He was arrested and taken before the Chief Magistrate Ann McLennan that same day and after pleading not guilty to each charged he was released on a total of $3 million bail and the case was transferred to the Bartica Magistrate’s Court.
Rasul’s court documents listed more than a dozen grounds on which his application was being made. It stated that on April 21, 2017, when Rasul appeared before Magistrate Lambert, six additional charges of obtaining credit by false pretence contrary to Section 213 (2) of the Criminal Law (Offences) Act were instituted against him. The prosecution applied for and withdrew the original six charges.
The court documents stated that the provisions of the Administration of Justice Act were again applied with regards to the second set of charges, for a summary disposal of the charges after which the charges were re-read and not guilty pleas entered by the applicant.
Subsequent to the withdrawal of the original six charges and as a “bar to the prosecution” on the second set of charges, a plea of Autrefois Acquit was raised by the defence.
According to the application, the defence contended that the withdrawal of the six charges by the prosecution after Rasul would have entered a not guilty plea “was a dismissal on the merits in the circumstances and a bar to any further prosecution on the new charges in which the particulars were identical in every respect, as the old charges.”
It was stated that the prosecution in response argued that the plea of Autrefois Acquit could not succeed on the basis that the new charges were filed under a different section.
The magistrate thereafter requested the defence to lay over copies of the cases cited in the course of its submissions, which was duly done and the matter was thereafter adjourned until May 12 for ruling. On May 8, the application said, the prosecution applied for and sought leave to amend the particulars of the six charges, to which the defence objected, and requested that the learned magistrate rule on its earlier submissions before dealing with the issue of amendment as she proposed to deal with it in the converse manner.
“Thereafter, the Learned Magistrate ‘dismissed’ the submissions made on behalf of the applicant on the basis that the court would have to first hear the evidence to determine if the particulars of the new charges were identical to that of the old charges that had been withdrawn and would proceed to conduct a trial of the applicant on the new charges,” the application states.
Rasul maintained that the decision of the magistrate was erroneous in law, without any legal basis, without jurisdiction, unlawful, ultra vires and a decision made in bad faith, all of which renders the decision a nullity.
“A comparison of the particulars of the twelve charges will confirm that the particulars of each of the six charges that were withdrawn are identical in every material particular, to the particulars of one of the corresponding new charges as to the informant, the date of the allegation, place, cheque number, amount of monies, names of Banks, etc.,” it stated.
Justice George on June 28 issued an interim order directing the magistrate to show cause why her decision should not be quashed and made absolute.
In delivering her oral ruling yesterday, she discharged the application on the grounds that the Magistrate acted lawfully and within her jurisdiction when she rejected the plea of Autrefois Acquit raised by the applicant.