The question is - fairness to try or fair trial for Henry Greene

The question is – fairness to try or fair trial for Henry Greene

Apr 18, 2012 Letters

Dear Sir,
The jurisprudential profundity of the decision of the Honourable Chief Justice, Mr. Ian Chang, in the Henry Greene application appears to have been totally lost to his detractors.
The fundamental issue which, in my humble opinion, confronted the Chief Justice was never whether Henry Greene could have received a fair trial within the criminal justice process but rather whether, in protection of the integrity of the criminal justice process, he should be charged on the basis of the advice of the Director of Public Prosecutions which the Court found to be have been infected with irrationality and illegality.
Within the context of an abuse of process application, the issue would have been not whether a fair trial could have been held, but rather whether it would have been fair for Henry Greene to face trial on the basis of the flawed advice – “fairness to try” rather than “fair trial”.
This is precisely why Justice Chang was at pains to explain that the fact that a fair trial can be held does not per se prohibit the Court from entertaining the the application and/or granting the reliefs sought, but that such a fact ( that a fair trial could be held ) provokes judicial restraint.
All that the Chief Justice did was to act in protection of the integrity of the criminal justice process lest it be abused by criminal proceedings instituted on the flawed advice of the D.P.P.
Respectfully, he did not act in protection of Henry Greene since he never barred his prosecution for any offence but rather acted in protection of the integrity of the criminal justice process.
He never said that Henry Greene should not be charged but rather said that he should not be charged on the flawed advice of the D.P.P.
He particularly stated that the Court cannot ex post facto lend itself to such irrationality and illegality by not granting the relief sought.
The focal point of the decision of the Chief Justice was the way the D.P.P. exercised her public law power and not whether or not Greene should be charged. It was a public interest application and a public interest decision.
Lawyers, most of all, should appreciate the above legal distinction and not have their legal eyes clouded by ad hominen and collateral moral and social considerations. Some social commentators, despite their vaunted and misguided claim to legal analytical competence, can be readily excused.
Lawyers, like Dana Seetahal, are invited to have a second look at the decision.
Robin Hunte
Attorney-at-Law

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The question is – fairness to try or fair trial for Henry Greene

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