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– By Latoya GilesChief Justice Ian Chang yesterday ruled that the Director of Public Prosecutions’ recommendationDirector of Public Prosecutor, Shalimar Ali Hackthat Police Commissioner Henry Greene be charged with rape was irrational. Chang read out his 65 page decision yesterday to a packed courtroom consisting lawyers, reporters and members of women’s rights groups.A few weeks ago the Chief Justice had directed the DPP to show cause why a Writ or Order of Certiorari should not be issued to bring up to the honourable court, and quash,NFL Jerseys Wholesale, the advice tendered by the Director of Public Prosecutions, given on or about the 3rd day of February, 2012 to the Commissioner of Police (ag), Leroy Brummel and the Assistant Commissioner of Law Enforcement, Seelall Persaud, or either of them, to institute a charge of rape against Greene.Secondly,China Jerseys NFL Wholesale, an Order or Rule Nisi of Prohibition directed to the Commissioner of Police (ag), Leroy Brumell and Assistant Commissioner of Law Enforcement, Seelall Persaud,NFL Jerseys Outlet, to show cause why a Writ or Order of Prohibition should not be issued preventing them from acting on the said advice of the Director of Public Prosecutions, or from instituting the said charge of rape against the applicant, on the ground that the said advice by the Director of Public Prosecutions is irrational, unreasonable,China Jerseys, unfair, unlawful, unconstitutional, null, void and of no legal effect.In December last year, a 33-year-old mother of two had dropped a bombshell when she alleged that she was raped by the Commissioner of Police after she had sought his assistance in a police matter that she was engaged in.After weeks of investigations conducted by independent investigators from the Jamaica Constabulary Force and amidst much speculation and anxiety, the Director of Public Prosecution Shalimar Ali-Hack advised that Green be charged with rape.But yesterday Chief Justice in his ruling said that “while the complainant did set out circumstances which unequivocally point to Greene’s commission of the offence of rape against her,Cheap China Jerseys, it strains one’s credulity to believe that she, succumbing to verbal pressure and any threatening conduct by Greene,Cheap Jerseys From China, came out of a car and entered the hotel room without seeking to run away or escape from Greene, even though he had expressly made clear to her his intention of having sexual intercourse with her”.Also taken into consideration in the Chief Justice’s ruling were statements given by the two persons at the hotel. According to the owner of the Hotel, Maxwell Thom, Greene and the woman entered the room calmly and after they entered the room he didn’t hear anything which suggested that she was protesting.Embattled Commissioner Henry GreeneChang said that after the two left the hotel and were driving in the car, Greene was talking to her as though they were lovers. The chief justice said that the question must be asked “why would the applicant soon after assaulting and having forcible intercourse with the complainant speak to her as though they were lovers?”More questions were raised, when Greene asked if she was hungry. According to the complainant in her statement, Greene then drove to Regent Street opposite Guyoil Gas Station where persons were selling food. At his request, the woman exited the vehicle and went to find out what was being sold. She returned and told Greene that “Chowmein and pepper pot” were being sold. According to her statement, she said that she went back purchased the two boxes of food and returned to the vehicle.Chief Justice said that surely her conduct in this “ex post facto” event can hardly be viewed as the conduct of a distressed victim of violence and rape while Greene’s conduct can hardly be viewed as that of a person who had just violated her.According to the woman’s court documents, Greene subsequently drove to her home, issuing threats to her life in the process. The complainant stated that Greene told her that he would know if she visits any doctor in the country.Even after the night that the complainant alleges that she was raped, the woman met Greene and accepted money from him.Further, Chang said that while it may be true that the credibility and reliability of the complainant’s story and the admissibility of the contents of the statements of other witnesses could have been adequately dealt within the criminal trial process, the court finds that the circumstances of the case were very exceptional.Moreso, he said, it required an insightful analysis of unusual circumstantial evidence on the part of the DPP, which was not done, and if done, to pass the realistic prospect of conviction test. Chang said this case was one which required the application of the “evidentiary test” by the DPP before advising prosecution against the applicant.Chief Justice Ian ChangThe Chief Justice said that it was a case in which such misunderstanding of her function as a prosecutorial authority had to be corrected by way of judicial review in the public interest.Justice Chang said that the case was an appropriate occasion to debunk the pervasive fallacy that the decision whether or not to prosecute rests solely on the answer to the legal question as to whether there is a prima facie case and that the reliability of the contents of statements made to the Police in criminal investigations is within the exclusive province of the jury. “The low rate of prosecutorial success and the heavy backlog of criminal matters pending hearing may well have a functional relationship with this fallacy which seems to permeate the mindset of the prosecutorial authorities in Guyana. The decision whether or not to prosecute is of fundamental importance in the criminal justice system – particularly in an accusatorial system which obtains in Guyana. It is a very important stage in the criminal process since it involves far reaching consequences to those affected by it.”The consequences for a defendant frequently do involve irretrievable loss of reputation or employment, disruption of family relations,Wholesale NFL Jerseys, substantial financial expenditure and even deprivation of pre trial liberty. The consequences for the victim of a crime where an incorrect decision not to prosecute is made can be equally damaging. As such, Justice Chang stated, it behoves prosecutorial authorities, such as the DPP to perform their function in such decision–making carefully and consistently with rationality and legality (and with procedural fairness). The Chief Justice also ordered that Greene pay costs of $50,000.Meanwhile, Attorney at Law Neil Boston, who represented Greene, told the media yesterday that the charge recommended against the Commissioner is based on irrationality and if the decision is irrational, the Chief Justice has the jurisdiction to set it aside. He explained that it doesn’t matter how clamorous is the call made by John Public that there should be a public trial. A public trial ought not to be taken if there is not a realistic prospect of a conviction.
