Wednesday, January 24, 2018

Attorney: Applicants' right to fair trial remains

BRITISH Queen's Counsel Lord David Pannick said yesterday those who lost the right to have their matters dismissed under the now repealed Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011, always maintained their right to be fairly tried for the offences for which they are charged.

Pannick is the lead attorney representing the Attorney General in the constitutional motion which challenges the repeal of Section 34 on September 13, 2012.

Government took a decision to have Section 34 repealed following an outcry by members of the public that those charged with fraud-related offences, arising out of the Piarco Development Project could walk free.

The matter is being heard before Justice Mira Dean-Armorer at the Hall of Justice in Port of Spain.

In concluding his submissions Pannick said Parliament, in deciding to repeal Section 34, is entitled to conclude there is a very considerable public interest in persons, accused of serious crime, being tried for the alleged offences on their merits.

"The public interest is obvious," Pannick said.

"Parliament is entitled to proceed on the basis that it would undermine confidence in the justice system if those accused of serious crimes escape the justice system in this way, whether or not they had brought Section 34 proceedings.

"The retrospective repeal of Section 34 does not prevent the claimants and the other defendants from defending the criminal charges on their merits. They will have the full protection of the law in a far trial. They will face a criminal trial like all other defendants."

Section 34 of the Act was proclaimed by President George Maxwell Richards on August 31, 2012 and created an avenue for persons, charged indictably with certain offences, including fraud, beyond a period of ten years, to apply to a judge to have their matters dismissed.

A total of 37 applications were made by several companies and individuals including businessmen Ishwar Galbaransingh and Steve Ferguson, financial director of Northern Construction Ltd (NCL) Amrith Maharaj, former government ministers Brian Kuei Tung and Sadiq Baksh, former chairmen of the Airports Authority Tyrone Gopee and Ameer Edoo, who are defendants in the Piarco Airport Development case.

Pannick said the claimants cannot succeed with the argument that they had a legitimate expectation that their matters would be dismissed having made applications under Section 34.

"One only has a legitimate expectation if there is a promise which is clear, unambiguous and devoid of relevant qualification."

He said there was no representation at all that Parliament would not revisit the matter and repeal Section 34 if it was deemed appropriate to do so.

Pannick described as irrelevant the contention by Ferguson's attorney, Senior Counsel Sophia Chote, that Director of Public Prosecutions Roger Gaspard overstepped the boundaries of his office by suggesting to Attorney General Anand Ramlogan that a retrospective repeal of Section 34 was necessary.

"It wasn't the DPP or indeed the Attorney General who decided to repeal Section 34; it was Parliament.

"If the Amendment Act withstands the constitutional challenges, that is it (the Amendment Act) is valid, there can be no basis for Miss Chote's complaints in law that the DPP was involved, if he was, in recommending to Parliament that it pass an amendment act which is constitutionally valid. Why should he not be involved in recommending a package of legislation which is constitutionally valid?

Attorney Ian Benjamin, who is representing the DPP, agreed.

Benjamin said Gaspard's actions were in keeping with his constitutional mandate to maintain public confidence in the administration of criminal justice in Trinidad and Tobago.

He argued that under the Constitution, the DPP, as an appointee of the Judicial and Legal Services Commission, has a role to play in advising other arms of Government in relation to the administration of criminal justice.

Benjamin is expected to continue his submissions when the trial resumes today from 9.15 a.m.

Dean-Armorer, before adjourning the matter, told attorneys that she expects to deliver a judgment before Good Friday (March 29).

The case at a glance

Before the court is a constitutional motion challenging the repeal of Section 34 of the Administration of Justice (Indictable Proceedings) Act.

The act was proclaimed by His Excellency George Maxwell Richards on August 31, 2012, and paved the way for persons charged indictably with certain offences beyond a period of ten years to apply to a judge to have their matters dismissed.

Offences not covered under Section 34 were contained in Schedule 6 of the act, and included murder, manslaughter, kidnapping for ransom, rape, grievous sexual assault, sexual assault with a female under the age of 14, incest, buggery, trafficking in persons, possession of a dangerous drug for the purpose of trafficking and unlawful possession of a firearm.

The section was repealed on September 13 during an emergency sitting of Parliament.

Judge: Justice Mira Dean-Armorer

Court: Port of Spain High Court at the Hall of Justice in Port of Spain.

The legal team for the applicants includes: Edward Fitzgerald, QC; Michael Beloff, QC; and Fyard Hosein, SC; Sophia Chote, SC; Vijay Deonarine, Neisha Abiraj, Robin Otway and Cherise Huggins.

The legal team for the Attorney General includes: Lord David Pannick, QC; Allan Newman, QC; junior counsel Gerard Ramdeen and Solicitor General Eleanor Donaldson-Honeywell; Kerri-Ann Oliverie and Rene Singh.

Attorneys for the Director of Public Prosecutions:

Ian Benjamin and Samson Wong.