The Office of the Director of Public Prosecutions (DPP) has asked the Court of Appeal to lift a stay against the prosecution of a former police officer accused of accepting a bribe over 15 years ago.
Presenting submissions before Appellate Judges Alice Yorke-Soo Hon, Prakash Moosai and Ronnie Boodoosingh during a virtual hearing yesterday, State prosecutor Nigel Pilgrim claimed that their colleague Justice Gillian Lucky got it wrong when she agreed to stop the prosecution of Nawaz Ali, three years ago.
According to the evidence in the case, on December 29, 2005, Ali allegedly solicited $6,000 from a man to forgo prosecuting him (the man) for a criminal offence.
The man allegedly paid Ali $4,500 and promised to pay the balance the following week.
However, the man told police and Ali was arrested in a sting operation when the man went to make the second payment.
Ali was initially slapped with two charges for misbehaving in public office, one for soliciting the bribe and two for receiving the bribe.
Before Ali went on trial in 2010, the two misbehaviour in public office charges were discontinued.
The nine-member jury in his case acquitted him of soliciting the bribe and of receiving the first bribe payment but convicted him over receiving the second payment. He was sentenced to five years in prison.
Ali successfully appealed his conviction.
In that appeal, the Court of Appeal questioned the jury’s decision as it ruled that there was no rational explanation based on the evidence in the case. A retrial was ordered in relation to the last charge as the jury’s decision on the other two was final.
When the retrial was set to begin before Lucky, Ali’s lawyer Ravi Rajcoomar applied for the stay claiming that the trial would be an abuse of process based on the jury’s decision during the first trial.
Rajcoomar also resisted an attempt by the State to raise evidence of the two charges, Ali was acquitted of, to prosecute the remaining charge.
Lucky agreed and said: “A Court is not supposed to be a mechanical creature just rubber-stamping decisions.”
She also stated that the developments in the case could have confused jurors in the retrial and led to a perverse verdict.
Presenting submissions in the appeal, Rajcoomar called upon the panel to uphold their colleague’s decision as he claimed that it would be oppressive and unfair to reverse it.
Questioned by the panel over whether Lucky could have clarified the legal issues in the case for the jury in her summation before their deliberations, Rajcoomar said no based on the complexity of the history of the case.
The appeal panel also questioned why the DPP’s Office chose to lay two separate charges for receiving bribes when the evidence showed that there were alleged two payments to cover the agreed upon sum.
Using a hypothetical example of a man choosing to pay a bribe in $1 tranches, Soo Hon questioned whether he would be charged thousands of times.
Pilgrim responded by pointing out that under the legislation, which created the offence, a person is guilty every time they receive a bribe payment.
“It is up to the DPP to determine how many charges are drawn up to meet the needs of the case,” Pilgrim said.
After hearing the lengthy submissions, the appeal panel reserved its decision for a date to be announced.