Appeal Court rules: No new trial for ex-cop on corruption charge

A former policeman who was accused of corruptly soliciting and receiving a bribe in 2005 will not face a new trial.

On Wednesday, the Court of Appeal upheld the decision of Justice Gillian Lucky, who stayed an indictment against Nawaz Ali.

As a result of Lucky’s decision in 2018, the charge against Ali was dismissed. The Director of Public Prosecutions appealed the decision on two grounds. And although the Court of Appeal found merit in the DPP’s arguments, it nonetheless dismissed the appeal on the basis that the prosecution of the case amounted to an abuse of process of the court, because of the way the State had drafted the three-count indictment.

Justices of Appeal Alice Yorke-Soo Hon, Prakash Moosai, and Ronnie Boodoosingh held that the DPP’s action was oppressive and that Ali ought not to stand trial at all.

At the High Court, Ali’s attorney Ravi Rajcoomar sought to have the three indictments against Ali stayed on the basis that it would be unfair, since at a first trial the jury had reasonable doubt on the evidence related to the first two counts, and acquitted him.

It was the intent of the prosecution to use that evidence to support the third count at the second trial, but Lucky said to do so would be averse to the fairness of the trial process.

She said to let the prosecution use the evidence would have led to contamination and confusion at a second trial, and allowed in all sorts of satellite issues, including an explanation of what took place at the first trial.

At the first trial, the State alleged that on December 29, 2005, Ali solicited a bribe from a man to forbear prosecution in a criminal case.

It was alleged that the two struck an agreement and the man paid Ali $4,500. It was also alleged that an arrangement was made for the payment of the balance of $1,500, which was made on January 4, 2006, at the Cunupia police station where Ali worked.

Police allegedly monitored the second transaction as part of a sting operation. An envelope with marked bills was allegedly found in Ali’s pants pocket.

The first two counts related to the first alleged transaction, while the third count related to the second claim.

At the first trial, the jury found Ali not guilty of the first two counts of soliciting and accepting a bribe, but found him guilty of the third count.

A Court of Appeal, which sent the case back for a retrial in 2010, said the three counts were inextricably linked and there could be no rational explanation for the jury’s verdicts.

At the appeal, Rajcoomar again argued it would be an abuse to send the case back to trial.

Yorke-Soo Hon, who delivered the unanimous decision, said by treating the case as separate transactions, the prosecution’s approach was technical and artificial, leaving the door “wide open for inconsistent verdicts.

“Had the DPP indicted on one count rather than two the respondent might have avoided an appellate process in respect of the inconsistent verdicts.”

But, she said, “The approach adopted by the DPP deprived the respondent of the opportunity of having all charges against him considered at the first trial.”

Yorke-Soo Hon said over a decade had elapsed since the first trial, and with a third charge looming over his head with uncertainty, while the prosecution was allowed two bites of the cherry, the situation could have been avoided.

Yorke-Soo Hon said while the court was mindful there was a strong public interest in prosecuting crime and ensuring those charged with serious criminal offences are tried, the public interest also required the court to ensure all its processes were used fairly by all.

“If the court fails in protecting its ability to so function it will inevitably lead to an erosion of public confidence and undoubtedly to oppression and injustice.”

She said while the matter was serious, the offence took place some 15 years ago, and “had the appropriate approach been taken from the outset by the DPP…this would have brought the matter to finality at the first trial in 2010, and not led to inconsistent verdicts and an order for retrial.”

State prosecutor Nigel Pilgrim represented the DPP at the appeal. Tiffany Ali also appeared with Rajcoomar for Ali.