Justice Roxanne George yesterday ordered a permanent stay of proceedings against former Customs Clerk, Sadika Tularam, after the prosecution failed to conclude the matters after more than four years.
In 2005, Tularam was charged indictably with four counts of larceny by clerk or servant, her employer being the Guyana Revenue Authority, Customs and Trade Administration.
The order by Justice George effectively quashes the charges and bars the prosecution from reinstituting them against the accused.
The judge found that Tularam’s right to a speedy trial as guaranteed under Article 14 of the Constitution was breached.
The woman, through her attorney Basil Williams, had moved to the High Court, seeking a declaration that her right to a fair hearing within reasonable time of the criminal charges being brought against her since September 19, 2005, has been contravened.
She also sought a declaration that the failure of the Director of Public Prosecutions (DPP) to afford the applicant a fair hearing in a reasonable time of the criminal charges being brought against her is an abuse of the process of the court.
The High Court was asked to order the permanent stay of criminal charges brought against Tularam, alternatively quashing the charges.
Since proceedings commenced against the former Customs employee in the Magistrate’s Court in 2005, only one witness had partially testified.
There were several adjournments, culminating with the matter being transferred from one magistrate to the other, causing undue delay much to Tularam’s frustration.
Tularam was arrested on February 17, 2005 and detained at the East La Penitence Police Station lock-ups for three days in connection with allegations of larceny.
Upon her release she was made to report to the headquarters of the Criminal Investigations Department on a daily basis, which she did.
The GRA subsequently dismissed her on February 22, 2005.
According to court documents, on September 19, 2005 Tularam was charged with four counts of larceny by clerk or servant contrary to Section 184 of the Criminal Law (Offences) Act, Chapter 8:01.
She appeared before Magistrate Bertlyn Reynolds and was admitted to bail in the sum of $90,000 after pleading not guilty.
On November 15 that year she appeared before then Chief Magistrate Cecil Sullivan on the same charges, the matters having been transferred to him by the previous magistrate.
Between November 15, 2005 and May 8 the following year, Tularam appeared before Magistrate Sullivan on several occasions but he never heard the charges, eventually transferring the matter to Magistrate Gordon Gilhuys.
For over two years since then the matters were called before Magistrate Gilhuys but the only witness called during that time never completed her evidence in chief.
Magistrate Gilhuys subsequently left the bench and the matter was put before Magistrate Nigel Hawke from May 8, 2008.
Since then it was adjourned to October 10, 2008 and latterly to November 28 last year for report.
This would have been a period of four years and one month.
In her affidavit to the court, Tularam contended that the delay in prosecuting the charges against her had severely affected her health, and had caused her mental aguish.
She also contended that it had prevented her from obtaining other suitable employment and had affected her prospects for marriage.
“I am advised by my attorney-at-law Basil Williams and verily believe that the failure of the DPP to afford me a fair hearing of the said charges within a reasonable time amounts to a breach of Article 144 of the Constitution and an abuse of the process of the courts.
In her affidavit in response, Director of Public Prosecution, Shalimar Ali-Hack specifically denied each and every averment of fact and contention of law made and contained in Tularam’s affidavit.
She pointed out that she had advised the police in the matter and contended that statements in the file revealed that there was strong and compelling evidence against the applicant for the offence with which she was charged on all four counts.
The DPP stated that having regard to the continued absence of Magistrate Gordon Gilhuys from the bench, she had informed the Attorney General, who subsequently informed Tularam’s attorney, that the Chancellor would have been contacted with a request for his client’s matter to be sent to the Chief Magistrate for it to be reassigned and reheard.
The DPP said that she wrote to the Chancellor last December, bringing to his attention that the matters that were being heard by Magistrate Gilhuys are all pending. She said that she sought information on the way forward.
Up to January 2, this year, she was still awaiting a response. But after listening to the arguments on both sides, Justice George ruled that Tularam’s right to a fair hearing within a reasonable time had been violated.
Tularam’s attorney Basil Williams told this newspaper that the Attorney General against whom the motion was filed never fully explained the delay.
“If in four years only one witness (partially) testified, what’s the use of going back to trial? What is novel in this matter is that the judge could have ordered us to go back to trial and ensure that it be done speedily. But this is not so; she ordered a permanent stay,” Williams observed.
Justice George subsequently awarded damages to Tularam in the sum of $150,000 and costs at $100,000.
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