Acting Chief Justice Roxane George SC has dismissed an application filed by Director of Public Prosecutions (DPP) Shalimar Ali-Hack, who was seeking to have former Minister of Finance Winston Jordan arrested without a right to be heard, and committed to be tried for the offence of misconduct in public office, which a Magistrate had discharged him of, after finding that there was not enough evidence to sustain the charge against him.
Though for different reasons, the Chief Justice affirmed the finding of the Magistrate that the prosecution had failed in discharging its burden of proving at the preliminary inquiry that there existed sufficient prima facie evidence warranting Jordan to be committed to the High Court for trial.
The case involved the controversial sale of prime waterfront properties located in Kingston, Georgetown, to prominent constructing and quarrying company BK Marine Inc., back in 2020.
The prosecution’s case had been that Jordan authorized the sale of the properties for far below market value of the land—selling them at a meagre twenty million dollars—when their real value was some five billion dollars.
Particulars of the charge against Jordan stated that he wilfully misconducted himself and acted recklessly and unlawfully by selling the properties at a grossly undervalued price to such a degree as to amount to an abuse of the public’s trust and without reasonable excuse or justification.
In throwing out the case, the presiding magistrate upheld a no-case submission made by Jordan’s attorney who argued that he ought not to be called upon to lead a defence as the prosecution had failed to make out a prima facie case.
The magistrate would go on to rule in Jordan’s favour, that the prosecution could not establish a key element of the offence—that being—that Jordan was a public officer, which had to be satisfied.
While the Chief Justice would also rule that there was not sufficient evidence to commit Jordan for trial, unlike the magistrate, she found that Jordan was a public officer; but would go on to find that the entire charge and evidence produced, lacked merit and therefore could not be sustained.
Following a request in consonance with the new statutory provision Section 72 (2) of the Criminal Law (Procedure) (Amendment) Act 2023, and having perused an authenticated copy provided by the Magistrate of the evidence produced by way of the witness statements, the DPP advanced that the no-case submission made on behalf of Jordan ought to have been overruled.
Through her attorney Dr. Kim Kyte-Thomas, the DPP in her application argued that Jordan was a public officer at the time he committed the alleged offence, that a prima facie case was established, and he therefore ought to have been committed to stand trial.
The DPP filed her application for a warrant for the arrest and committal of Jordan to the High Court for trial, in accordance with Section 72 (2) of the Act.
Subsection (1) provides, “In every case where a Magistrate discharges an accused person under section 69 or 71A (4), the Director of Public Prosecutions may make a written request to the magistrate to furnish an authenticated copy of the depositions taken at the preliminary inquiry and every other statement, document or thing relating to those proceedings and the magistrate shall comply with the request.”
Subsection (2) then continues, “Where the Director of Public Prosecutions, after considering the depositions and any other statement, document or thing furnished by the magistrate under subsection (1), is of the opinion that a prima facie case against the discharged person was established and the discharged person should have been committed for trial, the Director of Public Prosecutions shall make an application to a Judge of the High Court for a warrant for the arrest and committal for trial of the discharged person.”
“Provided that a Judge shall only grant the application of the Director of Public Prosecutions where the Judge is satisfied that the evidence, as given before the Magistrate, was sufficient to commit the discharged person for trial.”
Substituted
In her ruling delivered two Wednesdays ago dismissing the DPP’s application, the Chief Justice pointed out that the substituted Section 72 (2) as per the amendment to the Act therefore, removes the decision making from the DPP to a judge, and permits the DPP to make an application for a warrant of arrest and committal for trial of an accused person who has been discharged by a magistrate after evidence would have been led or after statements would have been filed.
The Chief Justice emphasized importantly, however, that the particular judge must be satisfied that the evidence, “given before the magistrate, was sufficient to commit the discharged person for trial.”
This amendment has its genesis in the Guyanese locus classicus decided by the apex Caribbean Court of Justice (CCJ) in the case of Marcus Bisram v The DPP [2022] CCJ 7 AJ (GY).
In that case, the original Section 72 (2), which permitted the DPP to remit a case to a Magistrate with directions to commit after compliance with the statutory provision regarding hearing from the defendant, was held unconstitutional.
The CCJ—held that Section 72 (2) as then formulated, infringed on the separation of powers in that the Court rendered the provision void as being in violation of the Constitution.
Among the issues which had to be resolved by Chief Justice George, was whether the defendant needed to be heard.
She noted that Section 72 (2) provides that an application may be made to a judge. She pointed out that the DPP’s application had been filed ex parte or without notice; while going on to further note that while the CCJ had recommended that an application such as that be filed ex parte, the legislature did not so provide.
Justice George noted Dr. Kyte-Thomas’ reliance on a case cited in support of her submission that there was no right for Jordan to have been heard in the proceedings before a judge, who she argued is vested with the same discretion as the magistrate, simply could not stand.
Distinguishing the authority proffered by counsel, however, the Chief Justice said that the particular case could not be followed in Guyana.
She pointed out that indeed precedent substantiates that when a warrant for arrest or summons is issued to cause a suspect or accused to be brought to court in the first instance, he or she is not heard on this application and it is never suggested that the exclusion of the natural justice rule works unfairly in that regard.
She underscored, however, that while this is accepted, the fact is that having been brought before the court, the accused is then heard on the charge, and in the context of committal proceedings, the entire process has embedded in it the right of the defendant to be heard before the magistrate issues the order to discharge or to commit for trial.
Encompass
Against this background, Justice George expressed the view that the focus of the fair hearing cannot be solely at the trial stage but must encompass the preliminary inquiry stage of the proceedings.
The entire preliminary inquiry process in Guyana she said, has traditionally been inter partes; adding that even with the now impugned direction of the DPP, the former Section 72 (2) provided for a defendant to be heard pursuant to Sections 65 and 66 in conformity with the right to be heard as provided for in Article 144 of the Constitution.
“It therefore cannot be that in a criminal proceeding where the accused would have been of the view that he or she was absolved as a consequence of his or her discharge by a magistrate, that he or she suddenly finds out, by order of a judge of the High Court, that he or she is to be arrested and committed for trial.”
“In the magistrate’s court, a defendant would be heard if a no case submission was overruled, or a case has been made out to permit the magistrate to call for a defence to be led before committal. The same should apply if an application is made to a judge for warrants of arrest and committal,” the Chief Justice reasoned.
Further, the new Section 72 (6) permits either the DPP or the discharged person to appeal the decision of the judge to the Court of Appeal. The Chief Justice said that thus, one would expect that in order to take advantage of this right of appeal, one must have knowledge that an application was made.
One way of so ensuring this she said, is by service of the application on the discharged person. Thus, while it has been argued that the provision does not countenance a right to be heard, by providing for an appeal – in effect our legislation contemplates such a right, she said.
Given the eventual ruling of the Court, however, dismissing the DPP’s application, there was no need for an order of the application being served on Jordan.
Turning her attention next to the evidence—the crux of the matter by which the application was thrown out, the Chief Justice said in reference to Section 69 of the Act, there is provision for discharge of the accused after evidence would have been led on his or her behalf at the preliminary inquiry.
The section provides, “If at the close of the case for the prosecution, or after hearing the accused or any witnesses he may produce, the magistrate is of the opinion that no sufficient case is made out to put the accused person upon his trial for any indictable offence, he shall discharge the accused and in that case any recognisance taken in respect of the charge shall become void.”
Section 71(4) provides, “where on consideration of any statements, documents, writings and other articles and on consideration of any submissions made on behalf of the accused person, the Magistrate is of opinion that a prima facie case is not made out to put the accused person upon his trial for any indictable offence, he may discharge him and in that case any recognisance taken in respect of the charge shall become void.”
The Judge noted that in exercising jurisdiction in a case such as this, the Court cannot simply accept the DPP’s opinion that the discharged person is to be committed for trial.
Fall into error
“To do so would be to fall into error as highlighted by the CCJ in Bisram whereby the court would be abdicating its adjudicative responsibility. The decision to commit is a judicial and not an administrative act,” the Chief Justice said.
As such, Justice George said she needed to consider whether the evidence produced by the DPP as exhibited to her application was sufficient for the committal of the discharged person for him to answer at a trial.
Given the particulars of the charge, the Judge noted that it has to be proven that the discharged person (Jordan): (i) wilfully misconducted himself, by (ii) acting recklessly when he signed the vesting order transferring property to BK (iii) on the payment of $20M for property valued $5B thereby selling at a price that was grossly undervalued (iv) to such a degree as to amount to an abuse of the public’s trust and without reasonable excuse or justification.
She said that the elements regarding whether the discharged person as Minister of Finance was a public officer and whether he was acting as such when he signed the vesting order are not in dispute.
Referencing case law precedent, Chief Justice George said that the main issue was whether on the facts the elements of wilful neglect and or wilful misconduct in particular had been satisfied.
On this point she noted from the authority that “there must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. The recklessness test will apply to the question whether in particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.”
The Judge said she had considered the submissions on behalf of the DPP on the merits of the case and in deference to precedent, agreed with the ground for the application and submission that the magistrate was incorrect in her conclusion that Jordan was not a public officer for the purposes of the charge instituted.
That said, however, the Chief Justice said she had gone through the statements and documents exhibited and had concluded that sufficient evidence has not been provided to permit the grant of the Section 72(2) order sought.
“I am not satisfied that the evidence, as given before the magistrate, was sufficient to commit the discharged person for trial. I have concluded that the evidence does not establish that the offence charged has been committed such as to permit me to issue the warrants for arrest and committal,” the Chief Justice.
Quoting from a legal precedent, she continued, “And if the magistrate is of the opinion that the proof submitted is not sufficient or that no reasonable jury can convict, he must discharge the accused.”
An important aspect of the case at bar she said, as the documentation proves, is that BK had entered into a lease agreement with National Industrial and Commercial Investments Limited (NICIL) dated December 4th, 2006, for the land in issue, with an option to purchase for the sum of $110M, which option to purchase was exercised.
“It is noted that the agreement is signed by Mr. Winston Brassington as Director of NICIL. It does appear to be his privatization paper, referred to, that the prosecution relies on,” the Judge said.
Among other things, the Judge said that in the statement of Oswald Barnes, member of the Board of Directors of NICIL from January 1st to December 31st, 2017, it is stated that the property to be sold to BK was for a purchase price of $191M.
The Chief Justice reasoned that from Barnes’ statement, it appears that there was a back and forth regarding a sale price, with BK at one point offering $110M, most likely pursuant to the option to purchase price.
She then went on to note that a statement of Charles McGarrell, valuation officer of the Valuation Division, Ministry of Finance, refers to a sum of $202.6M and that a letter on file from NICIL to BK dated October 23rd, 2017 indicates that the sale price of $191M was arrived at taking into consideration rent due. This letter also suggests that half of the interest in the sum of $10.6M be paid to take the total to the $202.6M.
McGarrell, gave a valuation dated November 23rd, 2021 of $400M. Court documents revealed that that said, as the statement of Barrington, Chief Valuation Officer revealed, a valuation of property is not necessary for the passing of transport.
The Judge said in her ruling that it is in this context that, less than one month later, Valuator Rene Duesbury, gave a valuation of $5.1B for the land by way of letter dated December 2nd, 2021 to Mr. Karimbaksh, Snr Superintendent, pointing out that here is no witness statement from him in this regard.
The letter the Court noted, stated that he referred to the instructions by Mr. Karimbaksh to prepare a valuation report on the land, the purpose of the appraisal being for the Special Organised Crime Unit.
It was noted that Duesbury’s notes for his 2021 valuation appear to rely on oil and gas industry infrastructure on what he considers to be comparable property. But there is no mention of whether this was the case when BK leased the property in 2006 with an option to purchase for $110M.
No record
According to court documents, one Drakes who held the position of Cabinet office manager stated that she found no record that Cabinet had approved the sale of the properties. She noted that there were records that advice be sought from the Attorney-General and that some of the records were redacted.
She did not say that the redacted parts had nothing to do with the sale of the property subject of this charge. And Barnes’ statement that he saw the minutes of the NICL board meeting which stated that the transaction was sent to Cabinet for approval, and that BK would not get the transport until the full amount had been paid, while hearsay, indicates that Cabinet was aware of it although, as noted, the purchase price seems to have been an issue.
“The fact that there is no written record of Cabinet approval does not ipso facto mean that there was none, nor does it make the action of the discharged person reckless and capable of amounting to wilful misconduct, more so when there was a contract setting out the price. It seems that if written Cabinet approval was evidenced, then the sale at the low price the prosecution complains about and seems to be focused on would have been of no moment,” Justice George said.
She went on to add, “there is nothing in the evidence to indicate that there was a clandestine sale of the property in issue, nor that the discharged person benefitted in any way, though it is recognized that misconduct in public office need not involve a benefit to the person charged.”
The focus of the offence she said, was the wilful neglect or breach of the duty by a person who holds public office such as to amount to an abuse of the public’s trust in this office holder, in circumstances where the conduct must be without reasonable excuse or justification.
Against this background, she underscored Cabinet’s approval.
The Judge surmised that “the charge in this case is based on an alleged breach of policies which have no statutory or regulatory basis. Thus, it is based on what can best be considered to be a shifting goal post dependant on the policy of the government of the day.”
She went on, “this is too subjective to provide certainty as regards what would be permissible as regards a charge. In this regard, I rely on the decision of the CCJ in McEwan which emphasized certainty for public guidance on what is to be prohibited conduct for the purposes of instituting criminal charges.”
On the facts therefore, the charge against the discharged person has no merit due to (1) the fact that there was a 2006 lease with an option to purchase which BK exercised; and (2) there were negotiations which resulted in the purchase price being fixed at $202.6M and not $20M as stated in the charge.
BK onto May 2020 was requesting the transport with a commitment to pay the balance of the purchase price. These facts do not support the element in the particulars of offence that the sale price was for $20M the judgment underscored.
The interventions of the discharged person as recorded in the minutes of the Cabinet meetings that have not been redacted indicate that he did not act recklessly, the Court said.
“The discharged person clearly was not acting in isolation. Thus, since the transaction was based on an agreement, it cannot be said that discharged person acted without reasonable excuse or justification. The documentation, therefore, does not support the final elements that the sale amounted to an abuse of the public’s trust and was without reasonable excuse or justification,” the Judge said.
“The pursuit of this case would be an absolute waste of precious judicial time when it is clearly a contractual matter,” the Chief Justice said; while adding that t a lot of the evidence produced in effect amounted to inadmissible hearsay, and unsupported opinion evidence.”
“The documents could not be relied on by themselves as the evidence. A court is enjoined not to consider and act on inadmissible evidence. That said, the admissible evidence discloses no offence; the inadmissible evidence, which properly cannot found a case, but which I reviewed since it was presented to the magistrate, equally discloses no offence. There is absolutely nothing amounting to criminality in what was done. This is a case that is really based on a contract and the enforcement thereof,” Justice George declared.
She made it clear that the prosecution and NICIL could not rely on current market prices or what it has been led to believe are current market prices given the oil and gas industry, to nullify an agreement executed many years prior, and the vesting order that flowed from it.
Justice George said that “indeed, it does appear that the State is in effect flouting the letter and spirit of the legislation that allows persons to register a previous contract for the sale and purchase of land, so as to prevent the vendor easily resiling therefrom by selling at a higher price to someone else. And it is again noted that the other 2021 valuation which was given less than a month earlier valued the land at $400M and not $5B.”
In the circumstances, the DPP’s application was dismissed.
