Lawyers for former Attorney General Anil Nandlall on Friday moved to have the larceny charge against him thrown out and he has asked the High Court to stay the pending proceedings until a decision is made.
In citing Magistrate Fabayo Azore for numerous errors made during his trial thus far, Nandlall’s attorneys argue that the “justice of this case” demands that his application for a stay of the proceedings in the lower court be made urgently.
In the urgent application, which lists Azore and Superintendent Trevor Reid as the respondents, Nandlall is asking for the matter, which is pending at the Georgetown Magistrate’s Court, to be stayed until the hearing and determination of the Fixed Date Application which challenges the validity of the charge.
Pointing out that the date for Nandlall to lead his defence was rescheduled from January 8th, 2019 to December 6th, 2018, the lawyers say they are fearful that unless restrained, the magistrate will proceed to hear and determine the matter, thereby defeating and rendering futile the application.
“…If the Learned Magistrate proceeds to hear and determine this matter before the determination of the Fixed Date Application filed herein, there is every likelihood that there will be a miscarriage of justice,” they add.
This urgent application will be heard on December 13th at 4 pm before Chief Justice (ag) Roxane George.
In his applications, Nandlall argues that hat the magistrate erred in law when she overruled his submission that the offence of “Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01” is not known to the Laws of Guyana.
He argues that the decision made by the Magistrate is contrary to and in violation of Articles 40, 144(4) and 149(d) of the Constitution of Guyana, unlawful, illegal, without and in excess of jurisdiction, erroneous in law, unreasonable, null, void and of no effect.
He notes that while the particulars of the charge allege that between the 18th day of May, 2015 and the 29th day of May, 2015, that he was the Attorney General and Minister of Legal Affairs and in that capacity he was a bailee of fourteen Law Reports of the Commonwealth, in fact during this period he did not hold either positions and therefore could not have been the bailee.
Further, he argues that the magistrate committed an error of law by overruling the submission that the Ministry of Legal Affairs is not a legal entity and has no legal persona and is therefore incapable of legally owning any property although the particulars of the charge allege that the Law Reports in question are the property of the Ministry of Legal Affairs;
Another error, according to him, was committed when the magistrate overruled a no-case submission notwithstanding that the prosecution failed to lead evidence to establish the constituent ingredients of larceny or the alleged offence of larceny by a bailee.
He argues too that errors were committed when the magistrate failed to find that the evidence adduced by the prosecution establishes that the fourteen Law Reports in question are his personal property and not the Ministry of Legal Affairs’; when the magistrate failed to find that the evidence adduced by the prosecution failed to establish any bailment in relation to the Law Reports in question whatsoever or that the Applicant was a bailee of the reports; and when the magistrate failed to find that the evidence adduced by the prosecution failed to establish the absence of an “honest” belief in the Applicant of a claim of right to the said fourteen Law Reports.
Further, Nandlall says that as a result of the foregoing, the decision of the magistrate to overrule the no-case submission at the close of the prosecution’s case “is erroneous in violation of Article 144(4) of the Constitution of Guyana, in excess of jurisdiction, unreasonable and irregular, the decision was influenced by irrelevant considerations, constitutes an error of law, capricious, whimsical and arbitrary.”
Haste
In his affidavit, Nandlall reiterates that in 2003 he commenced subscribing to Lexis Nexis, the publishers of the Law Reports of the Commonwealth and that during discussions with former President Donald Ramotar, immediately prior to being appointed Attorney General, “I requested that, as a condition of my service, the Government of Guyana take over the payment arrangements I had with Lexis Nexis (U.K.) …during my tenure as the Minister of Legal Affairs and Attorney-General.” Nandlall states that after Ramotar agreed to this condition he took up the position as Attorney General. When he demitted office, he said that payment arrangement ended.
He said that he learnt through the press of a special audit into the said Law Reports and on 16th November, 2015 he wrote the Auditor General after being contacted for a response in respect of the matter.
Ramotar, he said, also wrote the Auditor General on the matter.
Nandlall pointed out that although the Auditor General never implicated him in any wrongdoing in the 2012, 2013, 2014 and 2015 Auditor General’s reports, he was charged on April 27th, 2017.
He said that this development “came as a shock and surprise to me as having no factual and/ or legal basis; they reek of political victimization, malice, arbitrariness and capriciousness.”
Nandlall noted that the 13 witnesses who took the stand during the trial “regurgitated in their evidence-in-chief the matters contained in their statements.”
According to him, his attorneys presented “copious” written submissions in support of the contentions made and the magistrate in a “one sentenced ruling” overruled those submisisons and called upon him to lead his defence.
“My team of Attorneys-at-law, including several eminent Senior Counsel have advised that I am entitled to written reasons in accordance with the Judicial Review Act Chapter 3:06, Laws of Guyana. As a result one of my Attorneys-at-law has dispatched a letter dated the 28th November, 2018, requesting written reasons from Her Worship for her decision made on 23rd November, 2018,” he said,
He also said that two days after the matter was adjourned and January 8th, 2019 was set for him to lead his defence, one of his attorneys, Glenn Hanoman was summoned by the magistrate and informed that the matter was being re-fixed to December 6th, 2018 and on that date the defence must be prepared to lead its case.
“…the Prosecution took nearly two (2) years to present their case and the Learned Magistrate considers it appropriate to demand that I lead a defence in less than two (2) weeks. In the circumstances, the undue haste now embraced by Her Worship has caused me grave anxiety, distress and embarrassment,” he stressed.
Further, he said that none of the witnesses who testified for the prosecution led any evidence whatsoever that between the 18th day of May, 2015 and the 29th day of May, 2015, that he was the Attorney General of Guyana as is alleged in the particulars of the charge. “In fact, as a result of General and Regional Elections held on the 11th day of May, 2015, there was a change of Government and on the 16th day of May, 2015, Mr. David Granger was deemed elected Executive President of Guyana under the provisions of Article 177 of the Constitution,” he said.
Nandlall pointed out that the witnesses did not present evidence of wrongdoing on his part and presented “absolutely no evidence” that the Minister “ever owned these books.”
He said that the witnesses confirmed that payments were done in compliance with the relevant accounting and procurement procedures and that they were never questioned or queried by any person at all.
“Even if I held the honest belief that the Law Reports were mine and was legally wrong in that belief, I still cannot be found to have been fraudulent. To be wrong is not to be fraudulent,” he argues while pointing out that he had approached the High Court given the “haste” with which the magistrate has unequivocally signaled her intention to hear and determine the matter.
In the fixed date application, which will be heard after the urgent application for a stay of the lower court’s proceedings, Nandlall’s lawyers are asking for a declaration that the charge is an offence unknown to the law, rendering it unlawful, illegal, null, void and of no effect and as such the magistrate has no jurisdiction to hear or continue to hear and determine it; an Order or Writ of Certiorari quashing the charge; a declaration that the magistrate committed an error of law in ruling that the prosecution established a case against him; a declaration that the magistrate committed an error of law by overruling the applicant’s no-case submission in respect of the offence and three Orders or Writs of Certiorari quashing the decisions made.
