Sunday, December 17, 2017

Application dismissed

Ferguson, Edoo, three companies challenge repeal of Section 34

The Appeal Court yesterday dismissed an application involving businessman Steve Ferguson, Ameer Edoo and three companies, who had challenged the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011.

Appellate Justices Allan Mendonca, Peter Jamadar and Gregory Smith, in a 57-page ruling, dismissed the grounds raised by the appellants. (See list at centre.)

During yesterday’s hearing at the Hall of Justice in Port of Spain, British Queen’s Counsel Edward Fitzgerald, who represented Ferguson, told the court the Office of the Attorney General had given the undertaking should the Court of Appeal rule against the three companies (appellants) then the State would not object to conditional leave being granted.

In essence, such leave means the State will not object to there being a stay of criminal proceedings before Magistrate Ejenny Espinet and the Section 34 application in the High Court until the Privy Council delivers its ruling.

Attorney Ian Benjamin, who sought the interest of Director of Public Prosecutions Roger Gaspard, however told the court DPP Gaspard would not be adopting such a position as the State’s.

Benjamin told the court: “The DPP does not think it is appropriate to consent to stay the committal proceedings. He (DPP) did indicate there has been significant progress made at the Magistrates’ Court and he wants to progress with those proceedings”.

Gaspard had entered the proceedings as an interested party.

Following discussion, the panel agreed to the stay.

In a ruling which was agreed to by the panel and under the heading “General Observations”, the panel stated upon examining the actual criminal proceedings in the Piarco enquiries as a whole, “it is not in contention that the appellants had been charged with serious fraud and their matters were progressing by way of preliminary enquiry.

“In fact, during the course of their prosecution, the appellants have mounted a series of challenges to the proceedings, some of which had progressed to the Privy Council; as a result, the prosecution had been delayed over substantial periods.”

In delivering their ruling, the panel concluded: “These appeals have demonstrated above all else the onerous duty and responsibi­lity on the entire Parliament to carefully scrutinise legislation before enactment; but also, the rea­lity that even with care in the world, human error, collective human error, will at times occur.

“The Amendment Act has not been demonstrated to be unconstitutional and remains the law in force in T&T”.

The panel agreed the “true purpose of the amendment was a correction of Parliamentary oversight and/or a flawed piece of legis­lation”.

They noted that given these facts the retroactive “reversal of the Section 34” limitation provisions by Parliament “was not a wrongful termination of or interference with the rights of the appellants. On a realistic assessment of the amendment, in the context of (a) the original charges; (b) the passage of Section 34; and (c) its repeal by the amendment, there was no breach of the due process protections of the Constitution”.

The appeal panel had reserved its ruling in October last year following four days of legal submissions.