Acting Chief Justice Ian Chang on Monday, February 20, ordered that the Director of Public Prosecutions (DPP) Shalimar Ali-Hack submit to the High Court all evidence and statements which led to her recommending that a charge of rape be instituted against Police Commissioner Henry Greene.
However, the DPP in an affidavit in response to Greene’s motion barring the institution of the charge on February 7, the DPP said she is not required to answer to anyone constitutionally. She noted that she made her decision based on evidence presented to her and statements made by the victim, counsellor and Help and Shelter Child Protection Officer Carol Innis-Baptiste, Dr Dalgeish Joseph, and Dr Mc Rae (only name quoted).
She said that a “judicial review of a DPP’s decision to prosecute is only available in exceptional circumstances”, noting that such circumstances were not present while adding that the applicant’s claim is premature and in contravention of Article 187 (4) of the Constitution of Guyana. That article says that in the exercise of the powers conferred upon the DPP by “this article, the director shall not be subject to the direction or control of any other person or authority”.
Ali-Hack stressed that she did not act irrationally in recommending a charge of rape be laid against Greene, noting that enough evidence was presented to her office. “Based on the statements submitted to the DPP by the police, it is the considered opinion of the DPP that there is sufficient evidence therein to institute a rape charge against the applicant.”
Doubt
But the chief justice noted that the DPP has to show cause and she has failed to do so. He stressed that the onus is on the DPP to show that her recommendation of such a charge is not irrational.
He emphasised thereby in the interest of discharging all doubt, the evidence and statements used in the decision-
Police Commissioner Henry Greene
making process must be presented to the court on February 27.
He said those statements should have been presented before him on Monday, but such was not done, noting that the DPP is subject to judicial review.
But the DPP in her response said the “applicant’s application should be struck out forthwith since it has no merit, [and] is premature.” She said the main issue in the case is whether the victim consented to having sex with the applicant and that is an “issue of fact”.
This can only be ascertained by cross-examination and is for a jury to determine. The DPP said the move by Greene to have the High Court quash her advice and to prevent the police from charging him for rape is tantamount to stopping a “legitimate criminal process and usurp the role of justice”.
In the meantime, Attorney Naresh Harnanan told the court that he will file a supplementary affidavit with the information requested. The additional information will be submitted in seven days. The DPP is being represented by Attorney General and Legal Affairs Minister Anil Nandlall.
The police commissioner through a battery of high profile attorneys had moved to the court on February 7 to bar Crime Chief Seelall Persaud and acting Police Commissioner Leroy Brummel from instituting the charges recommended and to quash the decision of the DPP. He also said the DPP’s advice to charge is “irrational, unreasonable, unfair, unlawful, unconstitutional, null, void and of no legal effect”.
He was successful in blocking the charge of rape. But Ali-Hack held firm to her decision, stating that “based on the statements submitted to the DPP by the police, it is the considered opinion of the DPP that there is sufficient evidence therein to institute a rape charge against the applicant”. The DPP added that it is her responsibility to see whether there is sufficient evidence based upon which a charge may be instituted.
