“We will allow the appeal and set aside the conviction and sentence and a written decision will be following shortly,” said Chancellor of the Judiciary Yonette Cummings after hearing further submissions from the Director Public Prosecutions Shalimar Hack and Defence Lawyer Sanjeev Datadin.
The DPP restated that there was no evidence that Donald Rodney had been in possession of explosives.
“The defendant had possession of a walkie-talkie,” said the DPP, adding that he was knowingly in possession of that electronic communication device but “we don’t have sufficient evidence to prove that he was in possession of an explosive.”
Donald was on bail after appealing the Magistrates Court sentence of 18 months imprisonment for possession of explosives on June 13, 1980 when he had collected a bag with a walkie-talkie from then Guyana Defence Force (GDF) electronics expert Sergeant Gregory 4141.
Although Mr. Donald Rodney received a presidential pardon by then President Donald Ramotar in 2014, the DPP said Article 144 (6) of the Guyana Constitution states that a person who is pardoned shall not be trialed for a criminals offence. Ms. Hack explained that even though the court has no power to touch a pardon because of the separation of powers between the judiciary and the executive, the pardon shall not have an effect on the judiciary. “There may be a view that even though he was pardoned… The pardon is absolute but the issue that there is a view out there in relation to Commonwealth jurisdictions and my respectful submission is that it does not apply to Guyana. She noted that Guyana’s Constitution says no one should face trial for a criminal offence if he or she has been pardoned.
The DPP said even if the Guyana Court of Appeal finds that there was sufficient evidence to prove that Donald Rodney had been in possession of explosives, the court needs to find that the case has been going on for 30 to 40 years in violation of the constitutional right to fair hearing within reasonable time.
“We find that this is an overly appropriate case to have the conviction set aside,” the DPP said. “We have no objection to the appeal against the conviction and consequently if the appeal of the conviction is annulled, then the sentence goes,” she said.
The Chancellor of the Judiciary highlighted briefly that “a pardon is a pardon” and sought to ascertain why the case was before the court.
Defence Lawyer, Sanjeev Datadin said it is for Mr. Donald Rodney to determine whether he acknowledges that he was pardoned. The lawyer said the pardon related to the sentence but not the conviction. “He does not wish to benefit from any exemption in any form or fashion so he has exercised his right and the Executive could not take away that right without his consent,” he said.
The Chancellor said she had hoped that the concession would have come much earlier.
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