Attorney General makes submission to DPP on Greene’s rape allegation
Attorney General Anil Nandlall yesterday submitted a six-page document to the Director of Public Prosecutions outlining his considered opinion on whether an appeal lies against the Chief Justice’s decision in the Henry Greene matter.
Speaking on the matter yesterday, Nandlall said that he advised the DPP that in his opinion and in his considered view, an appeal does not lie against the decision of the Chief Justice. The Attorney General explained that the right to appeal is a statutory right; hence if a statue does not confer a right of appeal then none exists.
“In relation to that type of matter the Court of Appeal Act says that an appeal does not lie in any criminal cause or matter and the Henry Greene matter falls under that statutory provision and is a provision that has been interpreted by at least two written decision in Guyana”.
According to the document presented by Nandlall, “An appeal against prerogative remedies granted by the High Court lies to the Court of Appeal. However, there is one exception. This exception is captured by Section 6 (5) (a) of the Court of Appeal Act, Cap. 3:01. “No appeal shall lie under this section (a) from any order made in any criminal cause or matter.”
Further, this provision was interpreted in at least two written decisions emanating from the Guyana Court of Appeal. In both of these cases, civil/prerogative remedies were sought in respect of matters having their jurisprudential genesis in the criminal law.
These cases are Zaman Ali -v- Director of Public Prosecutions  45 WIR 196 and Re: Barry Dataram, Civil Appeal No. 158 of 2008. It was also stated that in the former case, criminal charges were pending against the Applicant in the Magistrate’s Court. He moved to the High Court to stay those proceedings. His application was refused by the High Court.
“He sought to appeal the High Court’s decision. At the hearing of the appeal, an objection was taken that the Court had no jurisdiction to hear the matter because no appeal lies by virtue of Section 6 (5) (a) of the Court of Appeal Act referred to above.
According to the document, in deciding whether or not proceedings fall within the expression “in any criminal cause or matter”, the decisive factor is the originating proceeding out of which the subsequent application arises, not the nature or subject matter of the application itself.
Nandlall further stated in his considered opinion that where an application was made to the High Court to stay or adjourn sine die the hearing of information relating to criminal charges and the application was refused, the subject matter of the originating proceeding was “criminal” (i.e. the order sought was so inextricable bound up with the subject matter of the charge that it could not be considered an order in a criminal cause or matter) and no appeal would lie against the order of the High Court judge.”
Further, reference was also made to the matter involving Barry Dataram, where the High Court granted certain prerogative remedies quashing proceedings filed in the Magistrate’s Court intended to extradite Dataram from Guyana to the United States of America to face criminal charges in that country. Several other cases were carefully highlighted in Mr. Nandlall’s submission to the DPP.
Having examined those, it is excruciatingly plain that the Chief Justice’s decision in the Application by Henry Greene, cannot be appealed.
The DPP’s recommendation which was challenged was that Greene should be charged with the offence of rape – “a criminal cause or matter”. The above mentioned cases clearly establish that the fact that the charge was not filed is wholly immaterial.
The jurisprudential nature of the allegation is criminal and if the process commenced, was taken to its procedural conclusion, it would have resulted in the institution of a charge of rape, Nandlall said. Therefore, an appeal does not lie.
However, Nandlall in responding to question of whether or not the DPP can reformulate charges for the embattled commissioner, said that it is her prerogative. Nandlall explained that the DPP has the right to seek an opinion from any other legal mind if his opinion is rejected.
“She can seek a second opinion and if it is different from mine then the appeal can be filed.”