By Richard Charan
Sep 12, 2012 at 1:12
Director of Public Prosecutions senior counsel Roger Gaspard today issued a statement on the Administration of Justice (Indictable Proceedings) Act 2011, and its impact on the two legal proceedings involving defendants charged in the Piarco Airport Terminal project.
The following is the full text of Gaspard’s statement -
RE: THE ADMINISTRATION OF JUSTICE (INDICTABLE PROCEEDINGS) ACT NO. 20 OF 2011 AS IT RELATES TO THE PROCEEDINGS IN PIARCO NO. 1 AND PIARCO NO. 2
On Independence Day, section 34 of the Administration of Justice (Indictable Proceedings) Act 2011 was brought into force. Curiously, no other substantive provision of this Act has been brought into force even though the declared legislative thrust of this Act is the abolition of preliminary enquiries. Section 34 (1) cannot stand on its own without absurdity, while 34(2) and 34(3) have nothing to do with any such abolition.
In fact, section 34(2) and 34(3) are of such effect that any matter involving offences committed over ten (10) years ago cannot now be tried unless they are excepted by Schedule 6 of the Act. However, Schedule 6 does not apply to the captioned matters.
These cases involve allegations of a conspiracy to defraud the Republic of Trinidad and Tobago of over TT$1 billion by the fraudulent use of bonds and the rigging of the contracts for the various Construction packages for the Piarco Airport Project.
I was initially consulted about the Act as a Bill in March 2011. I commented in detail by letter dated the 6th of May 2011 and forwarded same to the Hon. Mr. Herbert Volney, Minister of Justice. I could not comment on section 34 or Schedule 6 as now contained in the Act because they were not in the draft bill kindly sent to me by the Minister of Justice. I had never been asked to comment on the significance of section 34(2) and 34(3), prior to the Bill being introduced into the Parliament of Trinidad and Tobago on the 11th of November 2011.
However, I attended a meeting held by the Judiciary and Justice Sector Committee at the Chief Justice’s Conference Room at the Hall of Justice on 24th of July, 2012. One of the items on the agenda was the Implementation Process for the Regime under the Administration of Justice (Indictable Proceedings) Act 2011.
During this meeting, the effect and to some extent, the import of section 34 of the Act were raised. This prompted a response by the Minister of Justice that Cabinet had made a decision.
I note that the original clause 34 of the Bill was first introduced in November 2011 and as then drafted would not have affected the captioned proceedings. It also did not concern the date when offences were alleged to have been committed as a basis for discharge. However, clause 34 was changed on the 29th of November 2011 on a motion in the Senate by the Hon. Minister of Justice. The effect of that change was to prevent the prosecution of offences not covered by Schedule 6 where the conduct alleged occurred more than ten (10) years ago. Again, I stress that I was not consulted on this change to clause 34 of the Bill.
Further, the offences in Schedule 6 appear to have been selected by category rather than gravity. They do not for example include sedition, terrorism, piracy, money laundering or offences under the Larceny and Forgery Acts. This has the potential to disfigure the international visage of Trinidad and Tobago, especially since some of these offences and fraud tend to involve delayed detections and lengthy investigations spanning several jurisdictions.
May I hasten to add that I consulted with legal luminaries, based both at home and abroad and they have not been able to point me in the direction of any legislation that could be considered to be a sibling of or parallel with section 34(2) and 34(3) of the Act, in the entire Commonwealth.
The Administration of Justice (Indictable Proceedings) Act 2011 received the assent of the President on the 16th of December 2011. Instructively, on the 19th of December 2011 the Attorney General announced his decision not to appeal the judgment of the Hon. Mr. Justice Boodoosingh, that the decision to return Ishwar Galbaransingh and Steve Ferguson to the United States of America, was unjust and oppressive. Doubtless, when he announced that decision, the Attorney General must have had in mind the provisions of section 34.
Nonetheless, in giving his reasons not to appeal, the Attorney General stated as follows:
“… Both the judgments of the Court of Appeal and Justice Boodoosingh emphasized the point that it is the citizens of this country who have greater interest in seeing the alleged criminal conduct prosecuted since the principal victim is the State of Trinidad and Tobago, and the alleged criminality impacts more on Trinidad and Tobago rather than on the Requesting State.
7. These are findings and observations that no responsible Attorney General can ignore and I therefore consider it appropriate that I take cognisance of and pay due regard to them in my objective consideration of the way forward.
8. … Although, there may be certain aspects of the judgment of Mr. Justice Boodoosingh which in Counsel’s view are open to criticism, Counsel has advised that such criticism may not provide grounds of appeal of sufficient gravity that would lead inexorably to an overturning of his decision … Taking all these facts into account, and in particular the trenchant observations of both the Court of Appeal and Boodoosingh J pointing to the fact that Trinidad and Tobago is the appropriate forum, I have come to the view that the ends of justice will be served by foregoing the exercise of the undoubted right of appeal and allowing the matters currently before the local courts to be proceeded with.
This course would be in the interest of all concerned. Accordingly, I wish to announce that the Attorney General will not appeal the decision of Mr. Justice Boodoosingh, delivered on the 7th of November 2011.
9. This paves the way for the DPP in the exercise of his independent function to take the necessary steps to lay the indictments for which the Claimants have been committed in respect of the conduct and charges relating to Piarco. No. 1.”
Consequently, in the light of the Attorney General’s statement and as the respective stakeholders were not in a state of readiness for the implementation of the Act, it could not be reasonably expected that the Act and in particular section 34, would come into operation in the opaque fashion that it has.
In February 2012 the Ministry of Justice made a request of me for an indication of the number of matters to which 34(3) of the Act would apply. My office responded by letter dated the 22nd of May 2012 advising that there were forty-seven (47) matters for which committal papers had been received for offences committed more than ten (10) years ago and which were not covered by Schedule 6.
It should be noted that to date we have only received committal documents for Piarco No. 1. Piarco No. 2 is still the subject of a preliminary enquiry-although those proceedings are coming to an end, the prosecution having closed it case.
On Independence Day, the proclamation of section 34 of the Act took me by surprise. I learnt about it in the press. I should stress that I am satisfied that even without this provision, the right of an accused to a fair trial is and always has been properly protected, especially in the case of inordinate delay. This is because of the very well known powers of judges to stay proceedings when they find that an accused person has suffered irreparable prejudice, whether actually or presumptively and thus cannot have a fair trial.
However, section 34(2) and 34(3) automatically terminate prosecution of those offences which are the subject of the Piarco No. 1 and Piarco No. 2 matters, solely on the basis that they were committed more than ten (10) years ago. This is without regard to any other issue concerning the fairness of the trial process, such as the contribution of the defendants as it pertains to the issue of delay.
Andrew Mitchell Q.C., in seeking to persuade the Attorney General that his client Ishwar Galbaransingh, should not be extradited to the United States of America stated as follows:
“It is a decision which engages the right of the public to see and, if they wish, to go and visit a trial and see how the allegations play out in relation to the alleged abuse of taxpayers’ money.”
Andrew Mitchell, Q.C. also rather elegantly said that to deny Trinidad and Tobago the right to try Mr. Galbaransingh was “tantamount to accepting that there is no appropriate way of trying serious fraud allegations against the State in Trinidad and Tobago.” and that such a message “would send all the wrong messages at a time when the policy of the Government appears to be to bring to justice those who commit serious commercial wrongdoing.” He also advised that the matter before the Attorney General should not be influenced by “political objectives or interference,” but “should be based on the principles of law and justice.” I could not agree more.
As Director, I must not allow any proceedings to continue which have been rendered futile, whether or not there is evidence to support the allegations made in those proceedings. I do note that although the then Chief Magistrate in Piarco No. 1 found that there was a case to answer against all the defendants in those proceedings, I could not take Piarco No. 1 to trial. This was because of overlapping defendants and the obvious oppression and impossibility in having them before the High Court on an Indictment, while the Piarco No. 2 preliminary enquiry was on-going. In addition, I also intended to have one joint trial in the High Court relative to the allegations in Piarco No. 1 and Piarco No. 2 so as to save judicial time and to abridge costs.
In Piarco No. 2, it is note-worthy that as part of a plea agreement with me, Mr. Ronald Birk, a United States national, gave evidence on behalf of the State, adverse to the defendants. Furthermore, he has agreed to enter a plea of guilty to Conspiracy to Defraud the State of Trinidad and Tobago by dishonestly causing the contract for Construction Package 6 to be awarded to the NYC Consortium.
Accordingly, by letter dated 10th day of September 2012 I apprised the Attorney General of my grave concerns about this new Act and I suggested to him that as a matter of extreme urgency, section 34 of the Act should be repealed immediately with retroactive effect.
Further, by letter dated 11th day of September 2012, I also advised the Attorney General that any remedial legislative action taken in respect of section 34(2) and 34(3) must expressly indicate that it is of retrospective effect and should override sections 4 and 5 of the Constitution, since it involves the removal of existing rights of action.
It is of some comfort to note that the Honourable Attorney General has orally informed me that the Government of Trinidad and Tobago intends to convene Parliament on the 12th day of September, 2012 with a view to the repeal of the offending section 34.
This is a useful first step by way of corrective legislative action since I am of the unflinching view, that the current state of affairs cannot be allowed to remain extant, especially having regard to the public interest.
Hopefully, the situation can still be retrieved and the ramparts of the State’s right to prosecute these matters remain intact, as they properly should.