Bar Association condemns Judge’s public chastisement of a Senior Counsel over alleged fraud in court case

Mar 22, 2023 Court Stories, Features / Columnists, News

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Kaieteur News – The Bar Association of Guyana has added its voice to condemn the recent actions of a sitting judicial officer over his public chastisement of a senior officer of inner bar for alleged wrongdoings.

The statement by the Bar Association follows closely behind the decision of High Court Justice Sandil Kissoon who cited Senior Counsel, Stephen Fraser for colluding with his client to defraud her family members out of their portion of an estate.

In his decision, Justice Kissoon axed an estate from an Essequibo woman who was cited for dishonesty and fraud in relation to the last will and testament of her father.

Justice Kissoon ruled that Marina and Boating Services property in Essequibo sold to Antares Inc. back in 2017 had been fraudulently done and sold below value by Deborah DaSilva DeSantos, daughter of the deceased.

Justice Kissoon noted that DaSilva DeSantos’ lawyer, Fraser was implicated in the fraud and called his actions to be condemned in the strongest possible terms.

The judge said that as a member of the inner bar, Fraser’s use of the legal processes justifies his client’s conduct are “reprehensible and unpalatable.”

“The duty and obligation of Counsel to the Court is inviolable, it remains constant, never flinching, unyielding, unaffected by any fact, circumstance, litigant, personality, body or remuneration. It is never to be dishonoured as a matter of convenience in the manner it procures a desired or particular outcome…Duty, integrity, trustworthiness, honesty, obligation to oath, conscience and ethics are among the attributes that form the bedrock and lie at the foundation of the legal profession, the very qualities which birthed the legal profession.

In the absence of such, the Courts would be hard pressed to distinguish between Counsel and a dishonest litigant,” the Judge said in ruling condemning Fraser’s conduct.

In the case, the claimants, Dershanie Harrilall, Ameer Harilall, Sharief Mohamed and Charles DaSilva—who are also beneficiaries of the dead man’s estate, raised allegations against the executrix DaSilva DeSantos of “self-dealing, breach of trust, malversation of office, dishonesty and fraud.”

Justice Kissoon said it appears that both the executrix and her lawyer, “having committed a fraud upon that Court in those proceedings, to procure a particular outcome by deceit and, having benefited therefrom, now seek to rely upon that jaundiced outcome to obtain a similar result before this Court.”

In a release to the press issued on Tuesday, the Bar Association said that as a matter of principle, the disparagement of Counsel by the public and the judiciary is known to have a debilitating effect on the rule of law.

The Bar Association noted that such occurrences diminish public confidence in the administration of justice.

“The legal profession and by extension the administration of justice is guided by and rests on the adherence to a number of written and unwritten rules, norms and courtesies. The mutual respect passing between Bench and Bar is one such pillar on which the administration of justice rests, for it engenders public confidence in the system. Such confidence is undeniably imperative for the system to be effective,” the association added in its statement.

It continued that “It is for this reason that statements by the bench impugning the character of Counsel without due process must not be allowed to go unnoticed.”

Further, the Bar reminded that judicial restraint is always a prudent course of conduct.

It said: “We take the statements of the sitting judicial officer as an attack not only on Senior Counsel whose repute is known to be beyond reproach, but on the entire Bar, for it shakes the very foundation on which our profession rests. The character of Counsel is his/her most precious asset to himself, the profession and administration of justice. Any attack thereon causes immeasurable damage thereto.”

Additionally, the Bar Association sought to note that judges are elevated from the Bar.

“Disparagement at all levels must therefore not be permitted to go unaddressed and will not be countenanced by the Bar,” the association asserted.

Meanwhile, a statement by attorney at law, Nigel Hughes issued on behalf of Fraser on Saturday criticized the pronouncements of the judge in the matter.

Referencing the ruling by Justice Kissoon, the lawyer noted one of the most elementary principles of law and perhaps the foundation of several legal systems is the concept of natural justice and the right of an accused person to be heard before the pronouncement of judgment or the findings of fact made by any court of law.

Hughes said Senior Counsel, Stephen Fraser was neither a party to the action nor was he afforded any opportunity to be heard on any of the issues which the Justice Kissoon proceeded to make adverse findings on.

He held that at no stage during the proceedings was any allegation put to Senior Counsel Mr. Fraser.

“No testimony was led by any witness of any involvement by Mr. Fraser S.C. in any aspect of the dispute which engaged the attention of the Honourable Mr. Justice Kissoon,” Hughes said.   He noted that the matter was sent to appeal.

He added that it would appear that these matters escaped the deliberations of the trial judge who not only proceeded to make adverse findings inclusive of hostile comments on the conduct of the attorney but more disturbingly pronounced upon the conduct of Senior Counsel who was never afforded any opportunity to be heard on any allegations which were never put to him during the trial.

Calling the pronouncement “a most unusual and unprecedented development” in the jurisprudence of Guyana, Hughes said all the findings and pronouncements of the trial judge in the delivery of his judgment in relation to the conduct of Senior Counsel are rejected without reservation.

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• Ameer Harilall, Charles DaSilva, Dershanie Harrilall, Justice Sandil Kissoon, Sharief Mohamed

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