The late and non filing of several court documents has resulted in the trial to resolve a claim made by businessman Ronald Khan that the police wrongfully detained $54M in diamonds belonging to him, being delayed.
The trial which was scheduled to commence yesterday before Justice Fidela Corbin-Lincoln at the High Court in Georgetown was pushed to Wednesday, October 24.
A trial was ordered by the judge after the State refused to offer settlement to Khan who, among other things, is claiming that police confiscated his diamonds after investigations into a robbery which occurred at his mining camp at Ewang Creek in 1994. Khan is claiming that his diamonds were never returned.
The diamonds which were recovered from a 1994 robbery investigation are presumed to have vanished from the custody of the police.
According to the writ filed on January 3, 2011 at the High Court in Georgetown and issued by his Attorney-at-Law Nigel Hughes, Khan said that police “wrongfully detained” the diamonds after a robbery on his mining camp at Ewang Creek, during 1994.
Khan stated that after he checked and identified his diamonds, police ranks lodged them at the Mahdia Police Station. “Officers of the Guyana Police Force thereafter transported the diamonds to ‘E’ and ‘F’ Division,” the writ said.
Sometime later when Khan requested the return of his diamonds, he was informed that the said diamonds were required as exhibits in the criminal trial of the persons charged with the armed robbery of his mining camp.
The writ said that after the passage of several years and the unsuccessful prosecution of the defendants who over time have either died or escaped, Khan’s lawyer wrote a letter to the then Commissioner of Police requesting the return of the merchandise.
“The Commissioner of Police acknowledged receipt of the said letter but failed to return (Khan’s) property,” the writ added.
When the matter first came up on May 22, Justice Corbin-Lincoln ordered that the witness statement (affidavit) be filed by June, 22, 2018. The State which is being represented by Solicitor General Kim Kyte-Thomas was given until July 06, 2018 to file submissions raised about limitation.
To respond to those submissions, the plaintiff was granted until July 20.
However, the court heard from Attorney Hughes that the witness statement was filed late on Tuesday afternoon.
The lawyer also failed to file submissions in relation to the issue of limitation to which the State was expected to respond to.
Due to Wednesday being a national holiday, the Solicitor General indicated to the court that she did not receive a copy of the affidavit. The court was pushing to commence yesterday with Khan giving his evidence.
However, the Solicitor General requested a short adjournment so as to facilitate her getting a copy of the witness statement and perusing to be better able to cross examine Khan after he gives his evidence in chief.
Further, the Solicitor General went on to express her discomfort with the trial commencing yesterday given her stance. In responding, Attorney Hughes sought to justify why the affidavit was filed two months after the date specified by the court.
The lawyer said that his client, who has lost sight in one of his eyes as a result of the robbery, was ill for a period and this cause some difficulty in preparing the legal document.
Justice Corbin indicated that she perused certain legal documents filed by both parties and raised a question of ownership of the diamonds, since, according to her, Khan stated that he along with two other investors owned the dredge and land.
Justice Corbin was obliged to grant the adjournment in the matter but not after expressing, “This is unfortunate we will have to take another adjournment.” Within the new date set for the trial, the State was also ordered by the court to produce documents related to the case which dates as far back as 1994.
Attorney Hughes also has to file the submissions within that time.
When the trial gets underway, a total of four witnesses are expected to testify—three on behalf of the State and Khan in defence of his claim. The witnesses for the State are— Weslyn Fraser, Courtney Ramsey and Terrence Semple.
During preliminary submissions presented on May 22, Kyte contended that Khan has to prove that “the stones” were diamonds, and also, its value.
Kyte had said, “Assuming but not admitting the stones were diamonds, he (Khan) has to prove its value.”
Referencing Sections Six and Eight of the Limitation Act Chapter 07:02, Kyte contended that Khan failed to file claim against the state over the alleged missing diamonds within the period specified in the Act.
According to Section Six of the Limitation Act Chapter 07:02, “Every action and suit for movable property, or upon any contract, bargain, or agreement relating to movable property, or to recover money lent without written acknowledgement or upon any account or book debt, or to recover any salary or the value of any goods sold and delivered, shall be brought within three years next after the cause of action or suit has arisen.”
Further Section Eight states, “Every action and suit for any illegal or excessive levy, injury to property, whether movable or immobile, assault, battery, wounding or false imprisonment, and every other action or suit in which damages may be recovered (save and except for libel or slander) shall be brought within three years next after the cause of action or suit has arisen.”
Advancing further arguments, the Solicitor General had said that it is not mandated under the law for police to detain an item (s) to be tendered as an exhibit until the hearing and determination of a criminal matter.
Moreover, she argued that certain sections of the law make provisions for photographs of the items to be taken and tendered as exhibits.
She added that even as far back as 1994, it was customary for police ranks to take photographs of items to be tendered in court as exhibits, and thereafter, return the property to its owner.
As such, the Solicitor General submitted that Khan could have filed an action requesting the return of his belongings even as the criminal proceedings were ongoing, and not wait over a decade later to do so, as in this case.
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