Prosecutors Code dictates Dharamlall should be charged based on “Public interest”- GHRA

Last Updated on Saturday, 1 July 2023, 15:18 by Denis Chabrol

-Code also considers health of victim, withdrawal from case

Guyana’s Code for Prosecutors provides sufficient basis for Local Government Minister Nigel Dharamlall  to be charged with the rape of a 16-year old girl although the complainant has formally asked to withdraw the complaint, the Guyana Human Rights Association (GHRA) said on Saturday.

“Public interest considerations in the Dharamlall case point heavily in support of the need for a trial: the imbalance in power, the indigenous background and age of the victim,” the association said.

On the issue of whether the State could institute a charge if the complainant decides to withdraw, Mr Mc Cormack said there were cases in which the police could go proceed with a case in the absence of a victim. “The police can represent victims at any time and frequently do, usually if they are either vulnerable or they are too young. There are a couple of ways  in which the evidence can be led and tested. There is precedent for this,” he told Demerara Waves Online News.

The Prosecutors Code also states that prosecutors may also consider whether the victim wishes to proceed with the matter,  and the adverse effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence. Specifically, Prosecutors are urged to also consider that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest. “These include where the offence committed is  serious, where the suspect’s past record suggests that there are no suitable alternatives to prosecution, or where the absence of an admission means that out-of-court disposals which might have addressed the offending behaviour are not available,” the Code adds.

Head of the Police Force’s Criminal Investigations Department, Assistant Commissioner of Police Wendell Blanhum said on Friday that the statement and video recording of the girl’s request to withdraw freely and voluntarily would be sent back with the file to the Director of Public Prosecutions (DPP) for advice. Mr Dharamlall, who is on GY$1 million station bail, has denied all accusations through his lawyer. The girl had previously dissociated herself from the allegations and, on a police complaint from the Child Care and Protection Agency (CCPA), she gave statements at a child advocacy centre.

But GHRA President Mike Mc Cormack told Demerara Waves Online News that the DPP should not drop the case but advise that the alleged perpetrator be charged based on public interest consideration as stated in the Prosecutors Code of Conduct. “Public interest concerns, as set out in the Code for Prosecutors in Guyana, must take into account such matters as the age of the victim, whether a relationship of trust existed between offender and victim, whether the victim’s race or financial circumstances were relevant,” the association said.

The Code for Prosecutors, as published on the DPP Chambers website here, https://www.dpp.gy/wp-content/uploads/2016/04/CODE-FOR-PROSECUTORS-Guyana-v4-May-18-FINAL-003.pdf , states that in every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to  consider whether a prosecution is required in the public interest.

Mr Mc Cormack said in addition to the factor of age, there were other types of vulnerabilities that make it not advisable to have the victim in court even though the charges were serious. “It allows the process to take place. It may not be as convincing or as easy to secure a prosecution but the fact is it could happen. It doesn’t entirely revolve on the presence of the victim. Clearly, the reason why a person is withdrawing will weigh heavily on the prosecution’s decision but the manner in which this particular victim has been hustled into making decisions makes the entire issue of her withdrawal suspect and there is every reason for the public top know why this is happening,” the GHRA official said. He said from the inception the focus had been on getting the teenager to withdraw her allegation.

The long-time human rights activist said usually the victim in such circumstances is treated as a patient whose well-being is taken into serious consideration.

According to Mr Mc Cormack, there was need for a credible assessment of what was going on in the teen vs Dharamlall case and so the GHRA and other like-minded interest groups would have to consider the next steps if the DPP does not take further action.

The Prosecutors Code states that the Public Interest test is hinged on the seriousness of the offence determined by the suspect’s level of culpability. “Culpability is likely to be determined by the suspect’s level of involvement; the extent to which the offending was premeditated and/or planned; whether they have previous criminal convictions and any offending while on bail or whilst subject to a court order; whether the offending was or is likely to be continued, repeated or escalated; and the suspect’s age or maturity.

The code further states that prosecutors should also have regard when considering culpability as to whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health, as in some circumstances this may mean that it is less likely that
a prosecution is required.

In terms of the circumstances of the victim, the Prosecutors Code states these include where a position of trust or authority exists between the suspect and victim,  if the victim was serving the public at the time. whether the offence was motivated by any form of  discrimination against the victim’s race, ethnic or national origin, sex or gender, disability, financial circumstances, age, religion or belief, or the suspect
demonstrated hostility towards the victim based on any of those characteristics. “The presence of any such motivation or hostility will mean that it is more likely that prosecution is required,” the code states.

In deciding whether a prosecution is required in the public interest, the code states that prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family.

The impact of the case on the wider public must, according to the Code, be factored in whether to prosecute the suspect. “The greater the impact of the offending on the community, the more likely it is that a prosecution is required. In considering this question, prosecutors
should have regard to how ´community´ is an inclusive term and is not restricted to communities defined by location,” the document states.

Prosecutors are advised to consider obligations arising under the Constitution, the Protection of Children Act, Chapter 46:06, Juvenile Offenders Act, Chapter 10:03, all other legislation pertaining to the rights of children and young persons and the United Nations
1989 Convention on the Rights of the Child.