Nand­lall asks High Court to strike out law re­ports theft charge

-seeks ur­gent stay of pro­ceed­ings af­ter re­duc­tion of time to lead de­fence

Stabroek News Sunday - - FRONT PAGE -

Lawyers for for­mer At­tor­ney Gen­eral Anil Nand­lall on Fri­day moved to have the lar­ceny charge against him thrown out and he has asked the High Court to stay the pend­ing pro­ceed­ings un­til a de­ci­sion is made.

In cit­ing Mag­is­trate Fabayo Azore for nu­mer­ous er­rors made dur­ing his trial thus far, Nand­lall’s at­tor­neys ar­gue that the “jus­tice of this case” de­mands that his ap­pli­ca­tion for a stay of the pro­ceed­ings in the lower court be made ur­gently.

In the ur­gent ap­pli­ca­tion, which lists Azore and Su­per­in­ten­dent Trevor Reid as the re­spon­dents, Nand­lall is ask­ing for the mat­ter, which is pend­ing at the Ge­orge­town Mag­is­trate’s Court, to be stayed un­til the hear­ing and de­ter­mi­na­tion of the Fixed Date Ap­pli­ca­tion which chal­lenges the va­lid­ity of the charge.

Point­ing out that the date for Nand­lall to lead his de­fence was resched­uled from Jan­uary 8th, 2019 to De­cem­ber 6th, 2018, the lawyers say they are fear­ful that un­less re­strained, the mag­is­trate will pro­ceed to hear and de­ter­mine the mat­ter, thereby de­feat­ing and ren­der­ing fu­tile the ap­pli­ca­tion.

“...If the Learned Mag­is­trate pro­ceeds to hear and de­ter­mine this mat­ter be­fore the de­ter­mi­na­tion of the Fixed Date Ap­pli­ca­tion filed herein, there is ev­ery like­li­hood that there will be a mis­car­riage of jus­tice,” they add.

This ur­gent ap­pli­ca­tion will be heard on De­cem­ber 13th at 4 pm be­fore Chief Jus­tice (ag) Rox­ane Ge­orge.

In his ap­pli­ca­tions, Nand­lall ar­gues that hat the mag­is­trate erred in law when she over­ruled his sub­mis­sion that the of­fence of “Lar­ceny by a Bailee con­trary to Sec­tion 165 of the Crim­i­nal Law Of­fences Act, Chap­ter 8:01” is not known to the Laws of Guyana.

He ar­gues that the de­ci­sion made by the Mag­is­trate is con­trary to and in vi­o­la­tion of Ar­ti­cles 40, 144(4) and 149(d) of the Con­sti­tu­tion of Guyana, un­law­ful, il­le­gal,

with­out and in ex­cess of ju­ris­dic­tion, er­ro­neous in law, un­rea­son­able, null, void and of no ef­fect.

He notes that while the par­tic­u­lars of the charge al­lege that be­tween the 18th day of May, 2015 and the 29th day of May, 2015, that he was the At­tor­ney Gen­eral and Min­is­ter of Le­gal Af­fairs and in that ca­pac­ity he was a bailee of four­teen Law Re­ports of the Com­mon­wealth, in fact dur­ing this pe­riod he did not hold ei­ther po­si­tions and there­fore could not have been the bailee.

Fur­ther, he ar­gues that the mag­is­trate com­mit­ted an er­ror of law by over­rul­ing the sub­mis­sion that the Min­istry of Le­gal Af­fairs is not a le­gal en­tity and has no le­gal per­sona and is there­fore in­ca­pable of legally own­ing any prop­erty al­though the par­tic­u­lars of the charge al­lege that the Law Re­ports in ques­tion are the prop­erty of the Min­istry of Le­gal Af­fairs;

An­other er­ror, ac­cord­ing to him, was com­mit­ted when the mag­is­trate over­ruled a no-case sub­mis­sion not­with­stand­ing that the pros­e­cu­tion failed to lead ev­i­dence to es­tab­lish the con­stituent in­gre­di­ents of lar­ceny or the al­leged of­fence of lar­ceny by a bailee.

He ar­gues too that er­rors were com­mit­ted when the mag­is­trate failed to find that the ev­i­dence ad­duced by the pros­e­cu­tion es­tab­lishes that the four­teen Law Re­ports in ques­tion are his per­sonal prop­erty and not the Min­istry of Le­gal Af­fairs’; when the mag­is­trate failed to find that the ev­i­dence ad­duced by the pros­e­cu­tion failed to es­tab­lish any bail­ment in re­la­tion to the Law Re­ports in ques­tion what­so­ever or that the Ap­pli­cant was a bailee of the re­ports; and when the mag­is­trate failed to find that the ev­i­dence ad­duced by the pros­e­cu­tion failed to es­tab­lish the ab­sence of an “hon­est” be­lief in the Ap­pli­cant of a claim of right to the said four­teen Law Re­ports.

Fur­ther, Nand­lall says that as a re­sult of the fore­go­ing, the de­ci­sion of the mag­is­trate to over­rule the no-case sub­mis­sion at the close of the pros­e­cu­tion’s case “is er­ro­neous in vi­o­la­tion of Ar­ti­cle 144(4) of the Con­sti­tu­tion of Guyana, in ex­cess of ju­ris­dic­tion, un­rea­son­able and ir­reg­u­lar, the de­ci­sion was in­flu­enced by ir­rel­e­vant con­sid­er­a­tions, con­sti­tutes an er­ror of law, capri­cious, whim­si­cal and ar­bi­trary.”

Haste

In his af­fi­davit, Nand­lall re­it­er­ates that in 2003 he com­menced sub­scrib­ing to Lexis Nexis, the pub­lish­ers of the Law Re­ports of the Com­mon­wealth and that dur­ing dis­cus­sions with for­mer Pres­i­dent Don­ald Ramo­tar, im­me­di­ately prior to be­ing ap­pointed At­tor­ney Gen­eral, “I re­quested that, as a con­di­tion of my ser­vice, the Gov­ern­ment of Guyana take over the pay­ment ar­range­ments I had with Lexis Nexis (U.K.) …dur­ing my ten­ure as the Min­is­ter of Le­gal Af­fairs and At­tor­ney-Gen­eral.” Nand­lall states that af­ter Ramo­tar agreed to this con­di­tion he took up the po­si­tion as At­tor­ney Gen­eral. When he demit­ted of­fice, he said that pay­ment ar­range­ment ended.

He said that he learnt through the press of a spe­cial au­dit into the said Law Re­ports and on 16th Novem­ber, 2015 he wrote the Au­di­tor Gen­eral af­ter be­ing con­tacted for a re­sponse in re­spect of the mat­ter.

Ramo­tar, he said, also wrote the Au­di­tor Gen­eral on the mat­ter.

Nand­lall pointed out that al­though the Au­di­tor Gen­eral never im­pli­cated him in any wrong­do­ing in the 2012, 2013, 2014 and 2015 Au­di­tor Gen­eral’s re­ports, he was charged on April 27th, 2017.

He said that this devel­op­ment “came as a shock and sur­prise to me as hav­ing no fac­tual and/ or le­gal ba­sis; they reek of po­lit­i­cal vic­tim­iza­tion, mal­ice, ar­bi­trari­ness and capri­cious­ness.”

Nand­lall noted that the 13 wit­nesses who took the stand dur­ing the trial “re­gur­gi­tated in their ev­i­dence-in-chief the mat­ters con­tained in their

state­ments.” Ac­cord­ing to him, his at­tor­neys pre­sented “co­pi­ous” writ­ten sub­mis­sions in sup­port of the con­tentions made and the mag­is­trate in a “one sen­tenced rul­ing” over­ruled those sub­mi­sisons and called upon him to lead his de­fence.

“My team of At­tor­neys-at-law, in­clud­ing sev­eral em­i­nent Se­nior Coun­sel have ad­vised that I am en­ti­tled to writ­ten rea­sons in ac­cor­dance with the Ju­di­cial Re­view Act Chap­ter 3:06, Laws of Guyana. As a re­sult one of my At­tor­neysat-law has dis­patched a let­ter dated the 28th Novem­ber, 2018, re­quest­ing writ­ten rea­sons from Her Wor­ship for her de­ci­sion made on 23rd Novem­ber, 2018,” he said,

He also said that two days af­ter the mat­ter was ad­journed and Jan­uary 8th, 2019 was set for him to lead his de­fence, one of his at­tor­neys, Glenn Hanoman was sum­moned by the mag­is­trate and in­formed that the mat­ter was be­ing re­fixed to De­cem­ber 6th, 2018 and on that date the de­fence must be pre­pared to lead its case.

“…the Pros­e­cu­tion took nearly two (2) years to present their case and the Learned Mag­is­trate con­sid­ers it ap­pro­pri­ate to de­mand that I lead a de­fence in less than two (2) weeks. In the cir­cum­stances, the un­due haste now em­braced by Her Wor­ship has caused me grave anx­i­ety, dis­tress and em­bar­rass­ment,” he stressed.

Fur­ther, he said that none of the wit­nesses who tes­ti­fied for the pros­e­cu­tion led any ev­i­dence what­so­ever that be­tween the 18th day of May, 2015 and the 29th day of May, 2015, that he was the At­tor­ney Gen­eral of Guyana as is al­leged in the par­tic­u­lars of the charge. “In fact, as a re­sult of Gen­eral and Re­gional Elec­tions held on the 11th day of May, 2015, there was a change of Gov­ern­ment and on the 16th day of May, 2015, Mr. David Granger was deemed elected Ex­ec­u­tive Pres­i­dent of Guyana un­der the pro­vi­sions of Ar­ti­cle 177 of the Con­sti­tu­tion,” he said.

Nand­lall pointed out that the wit­nesses did not present ev­i­dence of wrong­do­ing on his part and pre­sented “ab­so­lutely no ev­i­dence” that the Min­is­ter “ever owned these books.”

He said that the wit­nesses con­firmed that pay­ments were done in com­pli­ance with the rel­e­vant ac­count­ing and pro­cure­ment pro­ce­dures and that they were never ques­tioned or queried by any per­son at all.

“Even if I held the hon­est be­lief that the Law Re­ports were mine and was legally wrong in that be­lief, I still can­not be found to have been fraud­u­lent. To be wrong is not to be fraud­u­lent,” he ar­gues while point­ing out that he had ap­proached the High Court given the “haste” with which the mag­is­trate has un­equiv­o­cally sig­naled her in­ten­tion to hear and de­ter­mine the mat­ter.

In the fixed date ap­pli­ca­tion, which will be heard af­ter the ur­gent ap­pli­ca­tion for a stay of the lower court’s pro­ceed­ings, Nand­lall’s lawyers are ask­ing for a dec­la­ra­tion that the charge is an of­fence un­known to the law, ren­der­ing it un­law­ful, il­le­gal, null, void and of no ef­fect and as such the mag­is­trate has no ju­ris­dic­tion to hear or con­tinue to hear and de­ter­mine it; an Or­der or Writ of Cer­tio­rari quash­ing the charge; a dec­la­ra­tion that the mag­is­trate com­mit­ted an er­ror of law in rul­ing that the pros­e­cu­tion es­tab­lished a case against him; a dec­la­ra­tion that the mag­is­trate com­mit­ted an er­ror of law by over­rul­ing the ap­pli­cant’s no-case sub­mis­sion in re­spect of the of­fence and three Or­ders or Writs of Cer­tio­rari quash­ing the de­ci­sions made.

(Ter­rence Thomp­son photo)

A warm wel­come: Or­phaned chil­dren from Joshua House, St John Bosco Home and Bless the Child were treated with a visit by Santa Claus along with other ac­tiv­i­ties as part of a Car­ni­val Christ­mas fair fa­cil­i­tated by Ramps Lo­gis­tics yes­ter­day.

Anil Nand­lall

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