CJ rejected DPP application to have Jordan arrested over BK deal
“It therefore cannot be that in a criminal proceeding where the accused would have been of the view that he or she was absolved as a consequence of his or her discharge by a magistrate, that he or she suddenly finds out, by order of a judge of the High Co
Acting Chief Justice Roxane George SC has dismissed an application filed by Director of Public Prosecutions (DPP) Shalimar Ali-Hack, who was seeking to have former Minister of Finance Winston Jordan arrested without a right to be heard, and committed to be tried for the offence of misconduct in public office, which a Magistrate had discharged him of, after finding that there was not enough evidence to sustain the charge against him.
Though for different reasons, the Chief Justice affirmed the finding of the Magistrate that the prosecution had failed in discharging its burden of proving at the preliminary inquiry that there existed sufficient prima facie evidence warranting Jordan to be committed to the High Court for trial.
The case involved the controversial sale of prime waterfront properties located in Kingston, Georgetown, to prominent constructing and quarrying company BK Marine Inc., back in 2020.
The prosecution’s case had been that Jordan authorized the sale of the properties for far below market value of the land—selling them at a meagre twenty million dollars—when their real value was some five billion dollars.
Particulars of the charge against Jordan stated that he wilfully misconducted himself and acted recklessly and unlawfully by selling the properties at a grossly undervalued price to such a degree as to amount to an abuse of the public’s trust and without reasonable excuse or justification.
In throwing out the case, the presiding magistrate upheld a no-case submission made by Jordan’s attorney who argued that he ought not to be called upon to lead a defence as the prosecution had failed to make out a prima facie case.
The magistrate would go on to rule in Jordan’s favour, that the prosecution could not establish a key element of the
offence—that being—that Jordan was a public officer, which had to be satisfied.
While the Chief Justice would also rule that there was not sufficient evidence to commit Jordan for trial, unlike the magistrate, she found that Jordan was a public officer; but would go on to find that the entire charge and evidence produced, lacked merit and therefore could not be sustained.
Following a request in consonance with the new statutory provision Section 72 (2) of the Criminal Law (Procedure) (Amendment) Act 2023, and having perused an authenticated copy provided by the Magistrate of the evidence produced by way of the witness statements, the DPP advanced that the no-case submission made on behalf of Jordan ought to have been overruled.
Through her attorney Dr. Kim KyteThomas,
the DPP in her application argued that Jordan was a public officer at the time he committed the alleged offence, that a prima facie case was established, and he therefore ought to have been committed to stand trial.
The DPP filed her application for a warrant for the arrest and committal of Jordan to the High Court for trial, in accordance with Section 72 (2) of the Act.
Subsection (1) provides, “In every case where a Magistrate discharges an accused person under section 69 or 71A (4), the Director of Public Prosecutions may make a written request to the magistrate to furnish an authenticated copy of the depositions taken at the preliminary inquiry and every other statement, document or thing relating to those proceedings and the magistrate shall comply with the request.”
Subsection (2) then continues, “Where
Shalimar Ali-Hack the Director of Public Prosecutions, after considering the depositions and any other statement, document or thing furnished by the magistrate under subsection (1), is of the opinion that a prima facie case against the discharged person was established and the discharged person should have been committed for trial, the Director of Public Prosecutions shall make an application to a Judge of the High Court for a warrant for the arrest and committal for trial of the discharged person.”
“Provided that a Judge shall only grant the application of the Director of Public Prosecutions where the Judge is satisfied that the evidence, as given before the Magistrate, was sufficient to commit the discharged person for trial.”