Two years for failing to declare London bank account
Thursday, April 27 2006
FORMER Prime Minister Basdeo Panday was today sentenced to two years in jail after he was found guilty of knowingly failing to declare his London bank account to the Integrity Commission for the years 1997, 1998, and 1999. Panday was also fined $20,000 and in default, will have to serve three years in prison. Chief Magistrate Sherman Mc Nicolls, presiding in the Port-of-Spain Eighth Magistrates’ Court, also ordered that Panday pay to the State $1.6 million which was in his London account at the end of the years 1997, 1998, and 1999. Mc Nicolls’ decision was made in an 18-page judgment delivered to a packed courtroom comprising Panday’s relatives and political colleagues. The following is the full judgment:
ABUSE OF PROCESS
I would like to deal firstly with the submission by Learned Counsel for the defence that I should stay the proceedings in relation to each of the complaints because they amount to an abuse of the process. There are two limbs to the application:
(I) The prosecution is an abuse of process because it violates the defendant’s rights as contained in Section 4(b) and (d) of the Constitution. Section 4(b) provides as follows:
the right of the individual to equality before the law and the protection of the law.
Section 4(d) provides as follows:
the right of the individual to equality of treatment from any public authority in the exercise of any functions.
(ii) It violates the rule of law.
In the case ex-parte Bennett Lord Lowry’s had this to say on the question of abuse of process at page 17 of his judgement:
“I consider the Court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it would be impossible to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons.”
I fail to see how the continued prosecution of this matter is offensive to the Court’s sense of justice and propriety.
The local Court of Appeal decision in Michael Maharaj and others AND THE STATE reported at Cr. A. No 58-65 of 2001, Sharma CJ had this to say on the issue of bad faith:
“Mr Allum’s second submission, supported by Mr. Guerra, SC that the behavior of the DPP amounted to an abuse of power was a bold one. We say this because we have always held the view that that those who hold high office under our Constitution are persons of probity and rectitude and it would need the most cogent evidence to dislodge that presumption. Not only must Mr Allum convince us that there was bad faith, he must go on to show that it resulted in an unfair trial.”
In our jurisdiction the post of the Director of Public prosecutions was created by the Republican Constitution of 1976 and gives him the following power by virtue of Section 90(3)(a) to institute and undertake criminal proceedings against any person before any court in respect of any offence against the law of Trinidad and Tobago.
This power is not limited by the 1987 Integrity in Public Life Act. Indeed Section 28 of that Act provides as follows:
“No prosecution for an offence under this Act, other than an offence under section 12(2), may be instituted.
(a) without the written consent of the Director of Public Prosecutions.”
It follows therefore that the Director of Public Prosecutions is unfettered in his discretion to initiate criminal proceedings under the 1987 Integrity in Public Life Act. In the instant matter he gave his written consent on September 18 2002 for Senior Superintendent of Police Wellington Virgil to lay the three complaints against the defendant. That is so endorsed on each of the complaints filed in this matter. The members of the Integrity Commission are appointed by the President after consultation with the Prime Minister and Leader of the Opposition, and that is provided for by Section 4(1) of the 1987 Act and Section 4(4) of the 2000 Integrity in Public Life Act.
To prove that the members of the Integrity Commission and the Director of Public Prosecutions acted in bad faith, the defence would have to prove bias against the defendant, which has not being done in this case. There is not one iota of evidence led by the defence to show that any one was in any way biased against the defendant or the United National Congress, and therefore, the submission that the prosecution was politically motivated is bound to fail.
The evidence adduced in this matter fails to disclose any breach of the defendant’s constitutional rights as guaranteed by Sections 4(b) and (d) of the Constitution. Further more, the authorities the defence relied upon to show a violation of the defendant’s constitutional rights are civil matters and not criminal ones, and as pointed out by Counsel for the prosecution there is no authority which states that either Section 4(b) or (d) applies to any criminal case.
When it comes to comparators, which is the word, used in the Bhagwandeen case, the only person to whom the defendant can be compared in so far as prosecutions are concerned is Finbar Ganga who is before the courts. The matters brought to the court’s attention by the witness for the prosecution, Mr Albert Alkins are not comparable in any way with the defendant’s position.
I therefore find that there is not evidence to support the allegation of an abuse of process and the matter is properly before the Court. The application to stay the proceedings on the ground of abuse of process is therefore refused.
I turn next to the submission that the Court has no jurisdiction to hear these matters because the prosecution failed to initiate the charges against the defendant within six months as required by Section 33(2) of the Summary Courts Act Chap 4:20 which provides as follows:
“In every case where no time is specially limited for making a complaint for a summary offence in the Act relating to such offence, the complaint shall be made within six months from the time when the matter of the complaint arose, and not after.”
I am satisfied that the six months time limit mentioned in the above section cannot apply to the instant case because Section 28(2) of the Integrity in Public Life Act, 1987, specifically prescribes a time limit of five years from the date the person in question ceased to be a person in public life.
The complaints were laid on September 18 2002 and I am of the years ended December 1997, December 1998 and December 1999 and under the 1987 Integrity in Public Life Act.
Section 13 provides as follows:
(1) Every person in public life shall file a declaration of his income, assets and liabilities with the Commission.
(2) The declaration shall be in the form set out in the Second Schedule
Section 15(1) provides for the time the declaration shall be filed with respect to a particular year.
Section 17 provides as follows:
“For the purposes of this Act the assets of a person in public life are all property, including money, beneficially held in Trinidad and Tobago or elsewhere by him and all rights or benefits enjoyed by him on a continuing basis.”
Section 20 provides as follows:
“For the purposes of a declaration, the income assets and liabilities of a person in public life, include the income, assets and liabilities acquired, held or incurred by any other person as his agent or on his behalf.”
The Second Schedule of the Act is quite clear as to what the declarant is required to provide in relation to banks.
Paragraph 2(b) states: Cash in bank (Identify each bank separately and state amount.)
The forms sent to the defendant, which was filled out and submitted by him to the Commission for the years ended December 31 1997, December 31 1998 and December 31 1999 as in accordance with the Second Schedule.
Item 2 on page 10 of the form states cash in Bank/Finance Houses, And paragraph 2.2-Savings Account.
Under this item the defendant declared accounts held at the Bank of Commerce Limited Gulf City.
Under paragraph 2.3-Current Accounts, two accounts with Republic Bank Limited, Park Street, Port-of-Spain was declared.
At page 21 of appendix II of the forms which were sent to the defendant and which dealt with instructions, and more particularly with specific reference to page 10-Section 2- Cash in Bank/Finance Houses, the following instructions were recorded:
“All balances maintained with commercial banks and non/bank financial institutions should be reported under this head.”
I form the view that those instructions were clear and unambiguous and must be followed strictly by the declarant if his declaration is going to be truthful and accurate. The defendant, being a qualified attorney-at-law should have had absolutely no difficulty whatever in interpreting the relevant instructions recorded above.
Section 17 of the Act describes assets as including money, beneficially held in Trinidad and Tobago or elsewhere by him.
It must necessarily follow therefore that the National Westminster Bank Account is declarable since it is in the joint name of the defendant, and also because it is maintained on behalf of his family by his wife. And since he is financially responsible for his family, it is a benefit enjoyed by him according to Section 17 of the Act and must be disclosed.
The authorities relied upon by the defence to show what “beneficially held” means are quite clear on how the matter ought to be approached, that is, regard must be had to all the circumstances of the case.
The Barbadian case of Cumings v Cumings (1975) 35 WIR page 69 was referred to by both sides in their submissions. In that case it was held that the transfer of the husband’s bank account into the joints names of the parties was insufficient to evince an intention that the wife should acquire any portion of it; in the absence of any intention to make provision for the wife, she had no claim on the bank account. In that case William Douglas CJ referred to the judgement of Vaisey J in the case of Jones v Maynard  1AER page 802 and the following passage of his judgement was quoted:
“I take the view that where spouses have a common purse and a pool of their resources, the husband’s remuneration is earned on behalf of them both, and the idea that years afterwards one can dissect the contents of the pool by taking an elaborate account as to how much was paid by the husband and how much was paid by the wife is not consistent with the original fundamental idea of a joint purse or a common pool, When the money goes into the pool it is there as joint property.
It seems to me that the provisions of Sections 17 and 20 are quite clear in that once an is for the benefit of the defendant it is disclosable in law.
There are two essential ingredients that must be proved by the prosecution under Section 27(1)(b) of the Act if the defendant is to be found guilty. They are:
(I) The defendant knowingly made a false declaration,
(II) The declaration was false in some material particular in that the defendant omitted to include a bank account held in England.
The onus is therefore on the prosecution to prove that the defendant deliberately failed to disclose the bank account knowing it was disclosable.
In order to be satisifed that the prosecution has discharged obligation under the Act to prove the ingredients of the offence, I must look at the evidence to ascertain whether the charges are proved against the defendant.
The prosecution first called Rosemary Johnson who testified that she wrote a letter to the defendant dated February 18, 1998 which she signed together with the declaration of assets and liabilities form for the year ended December 31 1997. The letter, without objection, was tendered into evidence. There being no cross examinations of this witness, the prosecution next called Mr Albert Alkins, the present Registrar of the Integrity Commission. He testified that he commenced duties as Acting Registrar January 21 2002. Numerous pieces of correspondence between the Commission and the defendant or his accountant were tendered into evidence as AA3 of AA15 without objection and they all had to do with the defendant’s obligation to file declarations for the years ended December 31 1997 to December 31 1999. This witness then testified that he wrote three letters to the defendant each dated May 21, 2002 and signed by him in his capacity as Acting Registrar of the Integrity Commission informing him that it had been brought to the attention of the Commission that he appeared to be the holder of a joint account number 39036189 at the National Westminister Bank London, and invited the defendant to provide an explanation as to why the account did not form part of his declaration for the years ended December 31, 1997, December 31, 1998 and December 31, 1999 respectively.
The defendant by letter dated May 29 2002 (exhibit AA17) acknowledged receipt of the letters and requested an extension of time which was granted by the Commission (exhibit AA18) by letter dated June 18 2002, the defendant gave his presentation in writing as to the reason for his non disclosure of the account in his declarations for the years 1997, 1998 and 1999 respectively. He stated that some time around 1987 moneys which the family had saved for the education of their children were given to his wife Oma Panday for disbursement for their children. Some time in August 1993 his wife open an account number 39036187 but could not recall if his name was added to the account at the time or sometime later. But the purpose of adding his name was to ensure that in the event something happened to his wife, their children’s education would not be interrupted as he would be able to disburse funds to them and as far as he could have recalled he never transacted any business with respect to the account and that he had since given instructions to the bank for the removal of his name from the account to avoid any further ambiguity and attached a copy of that letter.
He further stated that he did not declare the account as part of his assets because he did nor regard it as such since it was moneys held in trust for his children and he was not the beneficial owner of the funds in the account.
The Acting Secretary then wrote “AA20” to the defendant in which the Commission sought clarification of the different account numbers stated in his letter of the June 18 2002, and reminded him of his failure to respond to its letter of April 9 2002. The Secretary by saying if no further correspondence is received by July 5 2002 it shall proceed as it sees fit. The defendant responded by letter dated July 1 2002 (AA21) to the Commission in which he stated that the account (39036189) was opened in 1989 and that his name was added to the account at the time it was opened.
On July 15 2002, the defendant wrote another letter to the Commission in which he stated that in December 1989 he went to London for open heart surgery and he took a cheque with him from Trinidad to pay for his medical expenses and in order to do so he opened a current account number 02664283 at the Walthan-on-Thames branch of the National Westminster Bank. After surgery he left London but before doing so he left a small amount of money in the account which his wife managed and controlled. He further wrote that in April 1992 Mrs Panday transferred that account to the Wimbledon branch in order to service their children’s education and it was given a number (3906189) which is the subject of these proceedings.
What is of grave significance with the third explanation is this: when the first account was opened in 1989 for his benefit, it had absolutely nothing to do with his children’s education, but rather, with his medical condition. However, that must be regarded as part of his assets.
By letter dated July 18 2002 (AA23) the Commission wrote the defendant informing him that it had completed its investigation into his 1997-99 declarations and the report was made to the Director of Public Prosecutions because it was of the view that there were reasonable ground for suspecting that offences were committed.
This witness was cross examined extensively about persons who failed to file completed declarations over the years and the approach taken by the Commission to those matters as borne out in its Annual Reports which form part of the evidence in this matter.
The prosecution next called the complainant in the matter whose testimony was not challenged in any way by the defence and he gave an account of what he did when he executed the search warrant at the home of the defendant, interviewed and eventually charged him for the offences.
The prosecution next called Kim Jean Curtis-Winn as its final witness who was employed in 2002 as a Fraud Liasion Officer at the National Westminster Bank, England. The first document tendered through this witness, without objection was the bank statement with respect to account number 39036189 as “KCWI.”
She gave evidence of a cheque that was drawn on she said account dated March 31 2001 made payable to one Dr Jenkins “KCW2.”
This witness was then cross examined in detail and several documents were tendered into evidence by the defence through her, which showed that statements were sent to Mr and Mrs Panday at an address in Surrey, England, and to Mrs Panday in her maiden name at 105 Tarouba Road, Marabella in Trinidad.
I was impressed with the straight forward manner in which the witnesses for the prosecution testified. They were not discredited in any way under cross examination and I accepted them as witnesses of truth.
At the close of the prosecution’s case I was satisfied that it had proved its case and called upon the defendant to answer the charges which he did.
The defendant testified that his accountant, Mr Russel Ramkelawan, submitted the declarations. The explanation he gave for not disclosing the Wimbledon account was that it was not his account but that of his wife. He admitted his wife dealt with most of their household affairs including the finances which intensified when he became Prime Minister. She held the purse string in the household. He further testified that “KCW7” was statement concerning a National Westminister Bank account at Hammersmith, London, which was in the maiden name of his present wife Oma and he did not know that she had the account. He used go give her money and she would have kept it somewhere and the statement was sent to the address in Surrey in care of one Mrs Merle Mohammed who was his wife’s good friend.
The defendant then looked at “KCW5” a crown reserve account dated August 18 1995 and also in his wife’s name, and he gave an explanation for the amount in it. The defendant then looked at “KCW6” a diamond reserve account and it showed the crown reserve account being transferred into the diamond reserve account. These statements were then sent to his wife in her maiden name at the Marabella address where her parents lived. The defendant testified that it was not uncommon in Hindu families for the wives to control the finances of the home.
The defendant then testified that he was given a cheque by his health insurance company to pay for his medical operation and he and his wife opened an account in their joint names. The defendant then looked at “KCW3” and testified that it was the joint account he was speaking about. He denies making out a single cheque from the account in 13 years except in one instance. He gave an explanation for the joint account, that if any thing should happen to Oma, the children’s education could continue and in those circumstances he regarded as his wife’s account since she dealt with the children’s education.
The defendant further testified in his evidence in chief that he never made any reference to the Nat West account because it was not his.
In relation to the large amount of over 100,000 pounds into the account, the defendant testified of the part played by one Lawrence Duprey. His wife spoke to him about getting a scholarship for the children. The defendant then went on to deal with the correspondence between himself and the Integrity Commission.
The defendant testified that the one cheque signed by him was for fees for the family doctor in the sum of 500 pounds. It was directly put to him under cross examination if he wrote a cheque on the bank account which was in his name, that was plainly a cheque which he should have declared to the Integrity Commission, but his answer was “not necessarily so.”
When pressed under cross examination to say something about the scholarship from Mr Duprey for his children he said it was an arrangement with him and his wife and he had no knowledge of it whatever until this matter began.
When pressed further under cross examination to show what payments were made out of the Nat West current account for the children’s education, he was unable to do so apart from some transactions for housing and other minor ones.
When asked under cross examination he did not think the account which was opened in 1989 for his medical operation was disclosable to the Commission in those circumstances, he said he did not know, and when asked why not, his answer was he did not know.
The defendant’s continued answers under cross examination about his failure to declare the London’s bank account showed quite clearly he was not being truthful. When asked the question by the prosecutor whether he thought he should disclose the account, his answer was “if that was the law, then I should have.”
When asked for an explanation as to why he did not have the bank statements etc sent to his address in Trinidad, the answer the defendant gave his wife visited England often was rejected and the court inferred that the real reason was to conceal the account from the local authorities having regard to the fact that he considered the money in the account to be his.
The prosecutor then asked the question “so this is your money going into this account jointly held by your wife and yourself for the benefit of your children,” to which the defendant replied yes.
The defendant was then asked “you are not seriously suggesting Mr Panday, that an account that is controlled by your wife, is in your name and is for the benefit of your children, is not part of your assets, are you?” the defendant’s response was “yes I am.”
To support his case the defendant called Lawrence Duprey who did not help his case at all. His answers to questions about the scholarship which he called financial aid, and his business dealings were vague and not supported by any documentary evidence whatever and that makes his testimony in that regard highly suspicious and ought to be rejected as being truthful.
The final witness for the defence was Pundit Dr Rampersad Parasram who testified that his impression was that Mrs Panday was the one who handled the financial and family matters. Under cross examination he was asked whether the fact that the Hindu wife took care of the money did not mean to say it belonged to her exclusively, or whether it belonged to the family his answer was “yes it’s the family wealth.”
I inferred from the facts that the defendant was not speaking the truth when he said he did not consider the moneys in the account to be his and his reason for not disclosing it.
Indeed, by his own admission, he accepted that the money was for his family’s benefit and himself and the very witness called by the defence confirmed that even though the wife took care of the money it was the family’s wealth.
I find on the facts that not withstanding the arrangement that the account was administered by the wife, it did not prevent it being that of the husband and it also did not prevent it being his asset.
I also inferred from the facts that the defendant had every reason to withhold declaring the account because he must have been aware of the investigative powers of the Commission to investigate matters of such a nature in the light of his declared income for the years in question.
I also inferred from the facts that the continued use of Mrs Panday’s maiden name and her parents address in Marabella where the bank statements were sent was a deliberate attempt to conceal the account.
I also inferred that the defendant knowingly withheld declaring the account because it was in his name, it contained money for the benefit of his wife and children, and must have known it had to be declared. His own admission was that he was responsible financially for his wife and children.
His answers to several occasions had nothing to do with him must be rejected as being untruthful.
The witness the defendant called to support his testimony was not helpful to his case because he could not give direct testimony as to where the money came from. Further, the witness was the one, not the defendant, who called the money given for the children financial assistance. I did not believe he was being truthful at all.
I also did not believe the defendant when he said that the first time he heard about the scholarship was when the case started, this must be so in light of all that transpired in relation to the account.
I find it incredible to think that the wife would have withheld telling the defendant about the scholarship money if indeed it was given for that reason because of his limited salary.
If Mr Duprey was speaking the truth that it was financial assistance which adds up to a gift, then it was all the more reason why the defendant would want to deliberately withhold disclosing the account because it was given by a large businessman to the Prime Minister’s family and the consequences that would flow from such a transaction. The witness’s answers under cross examination were vague and uncertain and left me with no alternative but to find that he was not speaking the truth.
The final point I wish to discuss in this matter is the payment of the defendant of the payment of the 500 pounds cheque to the family doctor.
That single act, to my mind, is clear, compelling and cogent evidence that the defendant treated with the account as belonging to him and was for his family’s benefit and in those circumstances ought to have declared the account.
I have taken into consideration the good character of the defendant in determining his guilt or innocence in this matter.
The manner in which the defendant gave his testimony and his demeanour in the witness box left me with no alternative but to conclude that he was not being truthful about his dealings with the accounts.
I therefore reject the explanation given by the defendant about his failure to declare the account to the Integrity Commission and find he knowingly made declarations of Income, Assets and Liabilities for the years ended December 31 1997, December 31 1998 and December 31 1999 that were false in a material particular in that he failed to include in the said declaration, money held in account number 39036189 at the National Westminster Bank PLC London, England in the name of the said Basdeo Panday and Oma Panday.
I therefore find the defendant guilty as charged for each offence.
One final matter I wish to put on record is this: the people of Trinidad and Tobago should know that my mind is free from all sorts of influences because of the immense coverage given by the media in this matter and that they had no bearing whatever in the decision I have arrived at. The maxim “justice is blind” and there is a rule of law for every one regardless of personality is still alive and well in our society today.
Dated April 24 2006.
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