DPP has sole discretion over special prosecutor appointment

DPP has sole discretion over special prosecutor appointment--will one be named for Sacred Heart case?
Stabroek News Courts Section. Monday May 19, 2008
http://www.stabroeknews.com/?p=14569

By Iana Seales
The Director of Public Prosecutions has the sole discretion over the appointment of special prosecutors and months have now elapsed since one was requested for the GuyFlag US$2M insurance scam case without any answer.
In the interim, the case has crawled on, routinely being hit by delays most recently over whether the appointment would be made by the Acting Director of Public Prosecutions (DPP), Shalimar Ali-Hack.
The Sacred Heart Church, which is at the centre of the fraud case, is on record as requesting the appointment of a special prosecutor as it is at liberty to do, and the appointment will come at no reported cost to the state but to date, the DPP has not replied to several letters about the request. Stabroek News contacted the chambers of the DPP on several occasions on this issue to no avail and attempts to speak with the DPP have proved futile.
Over the years special prosecutors have been appointed swiftly in several high profile cases notably the Mark Benschop treason trial; the Yohance Douglas murder trial; the New Building Society fraud case; the Buddy’s fuel trial; Guyana Revenue Authority and Fidelity Investment Limited polar beer scam case and more recently the Oliver Hinckson sedition/terrorism case, in addition to a few other criminal matters.
The appointment in the Hinckson case came long after the requests in the Sacred Heart trial, and is believed that the DPP made the appointment after questions were raised about the competence of the police officer who was acting in the capacity of prosecutor. Based on reports similar observations have been made in the GuyFlag case with persons close to the church saying that the case cries out for a special prosecutor.
Prosecutions at the level of the Magistrate’s Court are routinely handled by police ranks from the level of Corporal and above. There are instances when the DPP assigns a state counsel to act in the capacity of prosecutor but issues of staffing and in some instances, seniority do not permit this resulting in the DPP appointing an attorney outside of the chambers – a special prosecutor - to steer the case.
Criminal prosecutions are solely within the jurisdiction of the DPP, which means that the acting DPP is the sole individual entrusted with the power to prosecute or not, and to make appointments of special prosecutors. The constitution recognizes her as having sole judgment.
Article 187 (1) of the Constitution states that the DPP has power in any case in which she considers it desirable to so do. Sub-sections under this section point to her being empowered to institute and undertake criminal proceedings against any person, for her to take over and continue any criminal proceeding and likewise, discontinue at any stage such proceedings before judgment is delivered. The article makes no specific mention of the appointment of special prosecutors in matters before the court but the authority falls within the powers entrusted with the office.
Fiat
As to what the clear procedure is, a legal luminary told Stabroek News that, the injured party in a case would have to request in writing to the DPP for the officer to issue a fiat granting permission for a special prosecutor to be appointed. Often a lawyer/s is identified as willing to prosecute and since it is the injured party that is requesting it is usually of no cost to the state.
He explained that the state would make the appointment without any request being made if it has an interest in the case noting that requests made by injured parties are usually weighed on the basis of whether the state has the resources to appoint a special prosecutor. However, in instances when the injured party has undertaken to take responsibility for any costs incurred as a result of the appointment, he added that the DPP often grants the appointment.
Legal sources have observed that the DPP may not grant an appointment in a particular case if she has no faith in the attorneys being named to prosecute the particular case, and also if it is in the interest of the state to retain control of the prosecution. They point to the fact that a special prosecutor though working for the state can make certain judgment calls without first consulting the DPP.
“If it is a case where the DPP wishes to hold onto the prosecution then a special prosecutor is not likely to be appointed or it could be a case where the DPP does not find the attorneys being named to prosecute objective enough”, an attorney who requested anonymity stated.
He said that if the Sacred Heart church feels the prosecution needs to be strengthened and therefore substituted then it should write the DPP and request that a state counsel be assigned to the case.
Stabroek News was reliably informed that attorneys-at-law Nigel Hughes and Gino Persaud, who are currently looking into the interest of the Sacred Heart church in the GuyFlag case, have agreed to prosecute the matter pro bono.
Member of Parliament and attorney-at-law, Anil Nandlall speaking on the issue of how special prosecutors are appointed told this newspaper that indictable matters are instituted on behalf of DPP by the police and that it is felt that a special prosecutor is required in certain cases as complex issues would come up during the course of the matter.
“This means that with the police not being trained lawyers, it is sometimes felt that a lawyer is needed to prosecute the matter”, he said adding that the DPP is the sole authority vested with the power over all criminal prosecutions.
Nandlall, who has been appointed special prosecutor in several high profile matters, pointed out that whenever criminal proceedings are filed in Guyana it is theoretically filed under the name of the DPP and as such it is up to the office to appoint a special prosecutor if the need arises or a request is made.
He affirmed the procedure as the request first being made in writing to the DPP for the fiat and then permission being granted. He noted that the DPP also has the power to retain a lawyer outside of its chambers and can grant that lawyer a fiat to prosecute any given case as was the position with the trial of treason accused Mark Benschop.
Nandlall explained that on many occasions requests are made for special prosecutors when a case is stalled or moving along sluggishly or when there is not much confidence in the prosecution. He pointed out that cost is a factor which the DPP considers when appointing prosecutors, adding that it really is left up to the DPP to decide if they want to appoint a special prosecutor.
“It could be any lawyer who is named for to prosecute but there have been cases where persons named were refused by the DPP…It all depends on the nature of the case and with whom the virtual complainant feels comfortable with”, Nandlall said.
Meanwhile, another lawyer who has some experience with being a special prosecutor told this newspaper that there is another avenue that can be taken in cases where the DPP is not responding to a request for a special prosecutor. Speaking on the condition of anonymity, he said that in the Sacred Heart Church, those representing the church can approach the High Court saying that it is unreasonable for a special prosecutor not to be appointed by the DPP.
In the GuyFlag case it is alleged that on December 29, 2004, Fred Sukhdeo, with intent to defraud forged a document purporting to be a GuyFlag fire and perils claim for US$2 million ($400 million) for the Sacred Heart Roman Catholic Church. He is also accused of trying to obtain the said sum of money by virtue of a forged fire and perils claim form. According to the facts of the case, GuyFlag submitted a bogus claim for payment to its reinsurance agent AON Re and Sukhdeo, who was the head of the sister operation, the National Cooperative Credit Union Limited, was presented as a representative of the church dealing with the fire. It was when GuyFlag/ Sukhdeo allegedly approached a claims adjuster here that the alleged scam was discovered.
The alleged mastermind was arrested on November 17, 2005 and placed on $50,000 station bail.
He was charged in March of the following year with forgery and endeavouring to obtain upon a forged document and he appeared at the Georgetown Magistrate’s Court on March 21. He was released on $75,000 bail on that occasion.
The matter is now set to continue on July 22.