Chief Justice upholds larceny charges against Nandlall

Jan 22, 2019 News

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By Feona Morrison

Former Attorney General and People’s Progressive Party (PPP) parliamentarian Anil Nandlall has failed in his bid to have the High Court quash a larceny charge against him over the theft of Law Reports from the State.
After ruling that she has jurisdiction to hear an appeal against a no-case submission that was overruled by Magistrate Fabayo Azore before whom Nandlall is on trial for the offence, Chief Justice Roxane George yesterday dismissed the appeal
The charge Nandlall faces, alleges that between May 18, 2015 and May 29, 2015, being a bailee, in the then capacity of Attorney General and Minister of Legal Affairs, he fraudulently converted 14 Commonwealth Law Reports valued at $2,313,853, property of the Ministry of Legal Affairs, to his own use and benefit.
Nandlall who has pleaded not guilty to the charge is out on self bail. Following the Magistrate’s ruling on November 23, 2018, Nandlall was called on to lead a defence to the charge.

But Nandlall, through Senior Counsel Neil Boston, Attorney-at-law Devindra Kissoon, and others, moved to the High Court asking for a declaration that the charge for the offence of Larceny by a Bailee contrary to Section 165 of the Criminal Law Offences Act, Chapter 8:01, is an unknown offence, and therefore it is in violation of Articles 40, 144(4) and 149(d) of the Constitution of Guyana.
However, the Chief Justice declared that the offence is one, which is known to the Laws of Guyana. She said that Section 165 of the Criminal Law (Offences) Act makes provisions for such a charge.
According to that section, “Everyone who commits larceny or any felony hereby made punishable like simple larceny, shall (except in the cases hereinafter otherwise provide for) be liable to imprisonment for three years.” Hence, Chief Justice George declared that the charge against Nandlall is not bad in law.

Nandlall had contended that Magistrate Azore erred in law when she overruled the no-case submission made by his lawyer and when she failed/refused to give any sufficient reason for her judgment as required by the Judicial Review Act Chapter 3:06 and that her ruling is contrary to, and in violation of, Articles 40, 144(4) and 149(d) of the Constitution of Guyana.
In addressing this, the Chief Justice stressed that Nandlall failed to outline how his constitutional rights were being violated. She said that from the evidence before her, the Magistrate made a judicial decision and was not inclined to provide reasons on why she overruled the no-case submission.
The Chief Justice went on to tell the court that Magistrates usually give reasons for decision at the end of trials through a Memorandum of Reason. The Chief Justice outlined that the Magistrate was not in violation of Section 15 of the Judicial Review Act, which speaks of reasons for administrative and not judicial decisions.
Section 15 (1) states, “It is the duty of any person or body making an administrative decision, if requested in accordance with this section by any person adversely affected by the decision, to supply that person with a statement setting out the findings on material question of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.”
In ruling that she has jurisdiction to hear the appeal, the Chief Justice noted that it is at the Magistrate’s discretion to overrule a no-case submission. She explained that the High Court can exercise its supervisory jurisdiction to review such a decision by a Magistrate, but only in extreme and limited circumstances.
According to Justice George, moving to the High Court for a review in such circumstance should not be routine, since it would trample upon the process of criminal trials in the Magistrates’ Courts.
Expressing disappointment with the Chief Justice’s ruling, Nandlall told reporters that he will be moving to the Court of Appeal for a review.

The former Attorney General said that he was shocked by the ruling, since yesterday was fixed for the Chief Justice to rule on whether she had jurisdiction to hear the case.
Nandlall expressed, “The Judge had asked us (his lawyers) to persuade her that she has jurisdiction and that was all that we set out to do. And we did persuade her that she had jurisdiction, because she ruled that she had jurisdiction to review the Magistrate’s Court ruling.
“And that was the only question we were asked to address. But the Learned Judge decided the entire case. And then, we would invite her to call up the evidence (from the Magistrate’s Court) then we would address her on the evidence. But she decided the entire case, which was not our expectation. That was not what we had argued.”
“We have to appeal. We have to appeal to the Court of Appeal and get the court to stay the judgment,” Nandlall stressed.
In the Fixed Date Application (FDA) filed by Nandlall, Magistrate Azore and Superintendent of Police Trevor Reid, from the Special Organized Crime Unit (SOCU), were named as the first and second Respondents respectively.
Appearing for Magistrate Azore were lawyers from the Attorney General’s chambers, while Attorney-at-Law Leslyn Noble appeared for Reid. Noble during her submissions had argued that the High Court has no jurisdiction to intervene in a matter that is ongoing in the Magistrate’s Court where the Magistrate is still hearing evidence.
She contended that, “The High Court should not exercise its supervisory jurisdiction to intervene in the decision of the Magistrate when the Magistrate is hearing the evidence. The High Court did not hear the evidence. The High Court does not know what is before the lower court.”
An application made by lawyers for Nandlall, for Magistrate Azore to produce records of evidence to the High Court, was thrown out by the Chief Justice who said that the there was no reason for the Magistrate to file a response to Nandlall’s application, because Nandlall had failed to establish that there was a breach of his constitutional rights.
Nandlall is due to appear before Magistrate Azore on Friday, January 25, when he is expected to lead his defence.
Nandlall was previously reported as saying that when he took up post as Attorney General, he did so at a loss and it was for that reason he agitated for the State to pay for the Law Reports. He had said that the arrangement received the blessings of then Head of State Donald Ramotar.
However, investigators are contending that because the books were bought with State funds, they cannot be the property of Nandlall, and in fact the State should not have entered into such an arrangement in the first place.
The Ministry of Legal Affairs is contending that there is no evidence of an agreement between Nandlall and Ramotar, and even assuming that there was such an agreement, the use of public funds in this manner is a flagrant violation of the Financial Management and Accountability Act.
Nandlall was charged after SOCU, an arm of the Guyana Police Force, completed investigations.

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