BECAUSE the jury from a Coroner’s Inquest returned a verdict that no one was criminally concerned with the death of Oswald Tappin in 1972, dissatisfied mother Gladys Tappin was engaged in a legal battle for a murder charge against policeman Francis Lucas. She lost the battle.She instituted a private murder charge against Lucas which was discontinued by the Director of Public Prosecutions.

And her appeals to the court for Nisi Mandamus Order for a murder charge against the policeman who allegedly shot her son in the back, was refused on appeal to the Full Court and the Guyana Court of Appeal.
The appellant’s son was shot by the respondent, a police officer. A Coroner’s Inquest was held in which the jury returned a verdict that nobody was criminally responsible for the son’s death.
The appellant next filed private information in which she charged the respondent with murdering her son.
Upon the information coming before a magistrate , the latter read out a letter in open court purporting to be signed by the Director of Public Prosecution and discontinuing the information under Article 47 (1) ( c ) of the Constitution of Guyana. Thereupon the magistrate ordered the discontinuing of the private criminal proceedings and discharged the respondent.
The appellant, represented by Attorney-at-Law Mr. Samuel Brotherson, applied to the Full Court for an Order of Nisi for a mandamus against the magistrate’s order.
The Full Court held: (i) the question of the respondent’s criminal responsibility was decided at the inquest. The Coroner’s jury having absolved the respondent from criminal blame by finding he was not responsible; it was not legally competent for the magistrate to enquire into a charge of murder based on the same facts.
(ii) The Director of Public Prosecution exercised his power in person and in compliance with Article 47 (2) (c), having signed the letter of discontinuance and directed it to the adjudicating magistrate. Further, there was no necessity as contend, to admit the letter in evidence in the proceedings before the magistrate.
(iii) Article 47 (3) does not make it incumbent on the Director of Public Prosecution or any officer or agent of his to appear in court.
The cases referred to by the Full Court are:
(1) Harold Beresford 36 Cr. App.R2
(2) Connelly vs DPP 48 Cr. App.R183
(Editor’s Note: The decision of the Full Court was affirmed on appeal to the Guyana Court of Appeal. See (1973) 20 W. I. R. 229)
According to the judgment of the court, this was an application by Gladys Tappin for an Order of mandamus under Section 37 (1) of the Summary Jurisdiction (Appeals) Ordinance, Chapter 17.
The application requested an Order of Mandamus commanding Rudolph H. Harper, Senior Magistrate of the Georgetown Magistrate’s Court forthwith to discontinue hearing and determining a charge for murder instituted against the respondent Police (PC) Constable Francis Lucas. This application at one and the same time requested an Order of Mandamus against the said PC 8255 Francis Lucas that he should show cause why he should not stand trial for murder under the said charge.
The application, in addition to the orders above requested, further requested that Mr. E. A. Romao, the Director of Public Prosecution should show cause, how and when the proceedings in respect of the said murder were discontinued.
The judgment added: “We are of the view that the two latter requests for orders in this application were misconceived.”
The application also stated that on December 13, 1972 the said Magistrate Mr. Rudolph Harper ordered a discontinuance of the trial of the said murder charge on the erroneous legal ground that the Director of Public Prosecution had discontinued the said proceedings under paragraph 1 ( c ) of Article 47 of the Constitution of Guyana by virtue of a letter and ever since that day had refused to adjudicate on the said murder charge.
The facts on which the applicant relied were set out in her affidavit in support of the motion and in paragraph 11 of her affidavit she stated that an inquest was held into the circumstances surrounding the death of Oswald Tappin and that the Coroner’s jury returned a verdict that no one was criminally concerned in the cause of his death.
In her affidavit she also expressed the opinion as distinct from any assertion of fact which may support or justify such an opinion that she did not feel that she had justice at the Coroner’s Court at the inquest. An Order of Mandamus is not granted merely to assuage the feelings of any particular person.
She expressed the opinion also that she felt that it was a clear case of murder. She was not in a position to determine the legality and sufficiency of and evaluate the evidence and degree of proof in relation to any offence, moreso that of murder. That was a matter for a competent jury.
When the motion came up for hearing before this court the counsel for the appellant reiterated what was substantially set out in the affidavit in support of the motion. He said also that he was not questioning the right of the Director of Public Prosecution to discontinue the proceedings, but rather was saying that the letter by which the Director of Public Prosecution purported to have discontinued the proceedings could not have been acted upon by the magistrate because it was not part of the proceedings before the said magistrate.
The letter in question was produced for the benefit of this court by His Worship Mr. Rudolph Harper who was in court at the hearing of the motion.
The power of the Director of Public Prosecution to discontinue criminal proceedings is a supervening power on the magistrate or any court and is not a factor which the magistrate can question or take into account in the consideration and determination of proceedings before him. The magistrate or court has only the corresponding obligation to comply with the exercise of that power.
According to the judgment of the Full Court it, therefore, follows that in terms of Section 39 of the Coroner’s Ordinance Chapter 13, the Director of Public Prosecution must be presumed to have had all the records and minutes of the proceedings at the inquest transmitted to him and to have addressed and exercised his mind on them before taking the decision to discontinue the proceedings initiated by the applicant before the magistrate as he did and to have acted in good faith at all times when he did so “ omnia praesumuntur rite …….esse actu.”
The Full Court was constituted by Justices Akbar Khan, Charles Fung-A-Fat and Horace Mitchell. That court refused the Order of Nisi applied for.
By George Barclay