Competence and compellability

Sep 13, 2022 Letters

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Dear Editor,

It was reported in the media that in October 2021, Permanent Secretary of the Ministry of Amerindian Affairs, Sharon Hicks, was arrested by the police after allegedly demanding bribes from a businessman who paid her with marked bills that were retrieved during a sting operation conducted by the police.

At that time the Crime Chief, Senior Superintendent Wendell Blanhum, confirmed the arrest and noted that a sting operation was conducted where bills marked by the police were given to the Permanent Secretary by a businessman. Those marked bills were found in her possession.

It was reported that the businessman was allegedly threatened that he would not receive contracts from the Ministry if the monies demanded were not paid monthly.

According to reports, the sting operation was set up after the businessman, who usually provides security services to the Ministry, reported to the police that the Permanent Secretary was demanding monies from him before she signed off on his invoices

It was further reported that Hicks and the businessman’s father had a deal in which she would help him secure contracts with the Ministry and in return, he would pay her $200,000 a month. After the businessman’s father died, he took over his father’s business and that is when Hicks approached him to strike the same deal with him, to which he first agreed.

However, after reportedly paying Hicks for three months, he became tired and reported the matter to the police.

Hicks in December the same year appeared in the Georgetown Magistrate’s Court charged for corruptly obtaining money from the businessman and was released on $100,000 bail.

It is reported in the media that on Friday, September 9, 2022, the charge against Hicks was dismissed after the businessman refused to testify against her.

Editor, the reason for the dismissal of this matter is very concerning.

Many years ago, I underwent training as a Police Prosecutor. During that training, one of the subjects taught was “Competence and Compellability”, which relates to when a person can give evidence in a criminal matter.

Competence

It was said that any person is a competent witness and is capable of giving evidence, subject to two exceptions:

• A person is not competent to give evidence in a criminal proceedings if it appears to the Court that they are unable to understand questions put to them and give answers which can be understood.
• A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings). A co-accused can only give evidence for the prosecution once he or she ceases to be a co-accused (for example following a guilty plea). I must here note that a recent amendment to the Evidence Act of Guyana may have some impact on the admissibility of evidence of a co-accused.

Compellability

A witness is compellable if he or she may lawfully be required to give evidence. Most witnesses who are competent can be compelled to give evidence when otherwise unwilling to do so. The only exception relates to spouses and civil partners who are only compellable to give evidence against their partners in limited circumstances.

Having regard to the facts of the matter involving Permanent Secretary Hicks, I submit that the businessman, not being a spouse, a civil partner, or a co-accused, should have been compelled by the presiding Magistrate to give the evidence.

If having been so compelled, the businessman attempted to contradict the statement he had given to the police, he can be deemed a “hostile witness”. The law provides for how such a person should be treated.

I am of the view that the Magistrate erred when he dismissed the charge because the businessman refused to testify.

It is a sad commentary that in a country where there is a justifiable view that there is rampant corruption in the public sectors, and other areas, a senior Government functionary can be caught (red handed) in a sting operation with bills which were marked by the police, charged for the alleged corrupt action, and have the charge dismissed because the businessman refused to testify and he is not compelled by the Court to do so.

This clearly sends the unmistakable signal that many are only giving lip service when they speak about fighting corruption. Government and other officials often state that they need evidence before action can be taken against persons alleged to be involved in corrupt practices. In this case, the evidence appeared to be overwhelming, and yet the reported outcome.

What must we do to stop this malignancy? We, as a people, cannot be serious about fighting corruption when a person who is caught red handed walks free because someone who is competent and compellable to testify refuses to do so and the Court accedes. How unfortunate!

I end with this quote from Charles Caleb Cotton: “Corruption is like a ball of snow, once it’s set a rolling, it must increase”.

 

Regards,

Paul Slowe, CCH, DSM, Assistant Commissioner of Police (Retired)

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