Nandlall advised DPP not to

Attorney General Anil Nandlall

Attorney General Anil Nandlall on Monday advised Director of Public Prosecutions Shalimar Ali-Hack that Chief Justice Ian Chang’s decision to block a rape charge from being instituted against Police Commissioner Henry Greene is not appealable.

However, the attorney general advised that the DPP could seek a second opinion and different legal representation should she wish to do so. In a statement issued on Wednesday, Nandlall said that because of the public interest in this matter, he had sought and obtained the permission of the DPP to release his advice.

Nandlall’s advice also disclosed that where the DPP might have had the right of appeal under a 2010 act, the relevant Ministerial Order has not been entered to facilitate this as the rules committee of the High Court has not completed its work.

Police Commissioner Henry Greene

“I am aware that legislation was recently passed, receiving presidential assent, containing a provision which seeks to circumvent Section 6(5) (a) of the Court of Appeal Act, Chapter 3: 01. It is the Judicial Review Act, Number 23 of 2010, section 22 of which, reads as follows: ‘Notwithstanding anything in any other written law, there shall be a right of appeal from a judge of the court in any application, including one arising from a criminal cause or matter, to the Court of Appeal.’

“However, the said act is to come into operation by Ministerial Order, as mandated by Section 1 of the said act. The requisite Ministerial Order has not yet been issued and indeed, cannot be issued until and unless the new Rules of the High Court are promulgated because it is these rules which contain the procedure by which the court can be approached by a litigant seeking judicial review. The responsibility for the drafting of these new rules resides exclusively with the Rules Committee, which is chaired by the honourable chancellor of the judiciary. I am advised that the drafting of these rules, though commenced, have not yet been completed. “

DPP Shalimar Hack

Meanwhile, in a preamble to his advice, Nandlall said the right of appeal is a statutory right. However, he said at common law, no right of appeal existed.

“Therefore, if a statute does not permit or authorise an appeal then none exists.” He said ordinarily, 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, Chapter 3: 01.

It reads thus: “No appeal shall lie under this section (a) from any order made in any criminal cause or matter; 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 vs Director of Public Prosecutions [1991] 45 WIR 196 and Re: Barry Dataram, Civil Appeal Number 158 of 2008.”

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. The ratio decidendi of the case was stated to be thus at page 196 of the report: “Section 6 (5) (a) of the Court of Appeal Act (which falls in the part of the act dealing with appeals in civil matters) provides: no appeal shall lie [to the Court of Appeal] under this section – (a) from any order made in any criminal cause or matter.”

Nandlall said 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.

Accordingly, 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 (ie, the order sought was so inextricable bound up with the subject matter of the charge that it could not but be considered an order in a criminal cause or matter), and no appeal would lie against the order of the High Court judge”.

In the matter involving Barry Dataram, 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.

The attorney general appealed and like in Zaman Ali’s case, the jurisdictional objection was taken on almost identical grounds. Again the court upheld the objection. The Zaman Ali case was approved and followed. Ramson JA (as he then was) concluded: “It would therefore be fair to conclude that the provisions of the Fugitive Offenders Act 1988 together with the terms of the Treaty of 1931, the Criminal Law (Procedure) Act Chapter 10: 01 and Section 65) (a) of the Court of Appeal Act, Chapter 3: 01 [no appeal of a criminal cause or matter] irretrievably concatenate, if not unwittingly collude, to disempower an aggrieved party from seeking basal redress, as would normally be the case, even if the most egregious injustice has been meted out to him. The despairing observation of George, Zaman Ali… bears repetition in the instant application.

“By contrast, in the present state of the law, however grave and obvious the error of the… High Court, the aggrieved party can have no redress…”