Feb 08, 2012 News
-claims DPP advice was “unfair, unconditional, null and void
In what can be described as a preempting move, embattled Police Commissioner Henry Greene has moved to the High Court to quash the Director of Public Prosecutions Shalimar Ali Hack’s advice for the police to charge him with rape.
Chief Justice Ian Chang yesterday ruled that an Order or Rule Nisi of Certiorari be issued and directed to the DPP quashing her advice which was given on or about February 3rd 2012, to the Acting Police Commissioner of Police Leroy Brummell and Assistant Commissioner of Law Enforcement, Seelall Persaud, to institute rape charges against Greene.
It was also ordered that Brummell and Persaud should be prohibited from charging Greene based on the advice of the DPP, unless they show cause why the order should not be made absolute.
Greene’s lawyers Rex Mc Kay SC, Neil Boston, Bettina Glasford and Maxwell Mc Kay are contending that the advice by the DPP was unreasonable, unfair, unlawful, unconstitutional, and null and void with no legal effect.
In December last year, a 34 year old woman shocked the nation with the allegation that the commissioner of police raped her in a city hotel.
The allegation was extensively publicized in the Kaieteur News on December 14, 2011.
Greene subsequently proceeded on leave to facilitate an investigation, which was conducted by a Jamaican team of detectives under the supervision of Crime Chief Seelall Persaud.
The Commissioner said that members of the Jamaican Police team together with Seelall Persaud, Crime Chief interviewed him.
He subsequently submitted a statement to them on January 13 last, denying that he had unlawful sexual intercourse with the woman.
The DPP later advised on or about the 3rd day of February, 2012, that the Police charge Greene with the offence of rape.
According to Greene’s attorneys, the Commissioner should not be prosecuted for the offence since there is not sufficient evidence to provide a “realistic prospect of conviction”.
It was further stated that not every allegation of a criminal offence will automatically be prosecuted.
“The D.P.P. retains discretion to prosecute, which should be exercised according to judicial principles,” Greene’s lawyers argued.
Further, they contended, that the Director of Public Prosecutions exercised her discretion unreasonably when she advised that the Applicant be charged for the offence of rape.
Greene in his, affidavit said that it is a practice for him every Tuesday, to meet members of the public who have complaints against members of the Police Force.
He said that it was on one such day, Tuesday 15th November, 2011, when he met the victim (name given).
According to the Commissioner, it was the victim who requested to see him at his office in Eve Leary. Kingston, and was cleared by staff to do so.
He said that the victim complained that the police were investigating an allegation against her and she was hearing nothing about it and she needed to know what was happening.
Greene said he noted her complaint and promised that he would look into the matter. The Commissioner said he later requested information from the investigating ranks as to the status of that investigation.
He was then informed by the ranks that they were investigating an allegation made against her by another woman, in which his accuser had demanded $2m from her, otherwise she would go to the media and show a video of her husband having sex with the woman in a Hotel room.
It was on November 22, 2011, when the victim returned to Greene’s office and was told that the matter was referred to the DPP for advice.
According to Greene, the victim told him that in the course of that investigation, a cell phone was taken from her by the police, and was lodged at Sparendaam Police station.
It was further stated that the victim then requested from the Commissioner if he could have gotten back the cellular phone or if she can get access to the cell phone to retrieve the telephone number of some friends in Trinidad.
Greene said he told her that it is not possible for him to do so because the cellular phone is being used to conduct the investigation and it would prejudice the process.
Greene alleged in his Affidavit that it was the woman who subsequently requested to meet him socially. He said that he told her that he was having a meeting at the Officers Mess, Eve Leary at 7:00 p.m. the said night.
He stated that even though he was supposed to be in a meeting, the woman insisted that she will still visit the Officer’s Mess to see him.
The woman, according to the Top Cop, came and they spent some time talking and consuming beverages.
Greene said that they both agreed that when they left the Officer’s Mess, they will go somewhere private. After they left the Officer’s Mess, they drove to the ‘Villa’ “where we entered a private room where we had consensual sex.”
The Commissioner denied ever having a gun in his possession on the night of November 22, 2011.
Greene said that after leaving the hotel, they drove to Regent Street, where they purchased food at her request.
“There were several persons around the food stall buying food on the night in question. We spent about 15 minutes on the road where we purchased the food. I gave her the money and she went and purchased the food.”
Greene further stated that he drove the victim to her Victoria, East Coast Demerara home.
When they arrived at her home, he said, she identified her mother who was on the verandah and showed him an unfinished building which she said was her own.
“A close examination of the statement first given to the police will certainly reveal that the sexual encounter with me and the complaint was consensual and will negative the key contested issues of probable compulsion and lack of consent,” Greene said in his affidavit.
Greene was contending that the woman gave several written statements to the police, touching and concerning the allegation of rape against him.
He said that his attorneys were able to get access to one of those written statements which is dated the 13th December, 2011, which the woman gave in the presence of her lawyer Nigel Hughes.
He however noted that there are other statements taken from different persons by the police touching and concerning the said allegation of rape of which are in the custody of the police and which were always available to the Director of Public Prosecutions but not available to his Attorneys.
Greene argued that the woman’s background and history were necessary to determine because credible testimony from her is necessary to establish the crime he is likely to be charge for.
He used the previous police investigation against the woman as a basis to attack her character.
According to Greene, the woman has been under investigation by the Guyana Police Force since October, 2011, for extortion by demanding a large sum of money from the wife of a policeman, who she alleged had an adulterous relationship with her husband.
Greene referred to allegations made by his accuser that the policeman had sexually assaulted her, detailing the alleged act in a statement she gave to the police.
“A close examination of the aforementioned statements will point to only one conclusion that the victim lacks credibility and her allegation of rape is not credible. That it is increasingly clear that the complainant’s credibility cannot withstand the most basic evaluation. The prosecution cannot be sufficiently certain what account of those events the complainant will gave at the trial,” Greene stated
Greene an, attorney at law himself, continued that it is always said that along with the substantial power conferred upon prosecutors come unique responsibilities adding that rather than serving only as a zealous advocate on behalf of a client, prosecutors have a broader set of obligations to the community, the victim and the defendant:
“The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligations to govern and not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.”
The acting commissioner, crime chief and the DPP have until February 20 to respond, failing which they will be liable to process of execution for the purpose of compelling them to obey the Chief Justice’s order.
Attorney General Anil Nandlall told Kaieteur News that although he will be representing the DPP, the Acting Commissioner and the Crime Chief in the matter, he had not been served with a copy of the order up to late last night.
In an invited comment, A prominent attorney at law who did not wish to be named said that technically this is a novel situation.
He said that Greene’s lawyers must have provided good and sufficient reason for the chief justice to make such an order.
He could not say, however, if the move by Greene’s attorney is unprecedented.
“We live in an evolving society and things change,” the attorney stated.
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