British Queen’s Counsel Edward Fitzgerald yesterday said the Government was fully aware of the implications associated with Section 34 of the Administration of Justice (Indictable Proceedings) Act 2011, and was not misled into proclaiming it by former justice minister Herbert Volney, as is being claimed by the State.
Fitzgerald spoke yesterday at the Court of Appeal in Port of Spain, where businessman Steve Ferguson, Ameer Edoo and three companies are challenging the decision of a High Court judge who, in April, dismissed constitutional motions they had filed regarding the repeal of Section 34.
Fitzgerald, who is seeking the interest of Ferguson, told the three-judge panel comprising Justices Allan Mendonca, Peter Jamadar and Gregory Smith that there was no evidence suggesting that Cabinet had been misled.
However, even if this was so, “Parliament cannot take away the historical fact that people were led to believe that the matter had come to an end,” he said.
The attorney said with the proclamation of Section 34, his client had legitimate expectations that several fraud-related offences he is currently facing stemming from the construction of the $1.6 billion new Piarco International Airport would have been dismissed at the High Court.
“It is contrary to due process of law by Cabinet repealing Section 34 while the applications (for dismissal of the charges) are before the court... It is a right that was taken away by the same body that granted it and there is no justification for that,” said Fitzgerald.
He added that the intervention of Director of Public Prosecutions (DPP) Roger Gaspard SC, who made recommendations for the implementation of legislation to repeal Section 34, was also unjust, along with the “interference of the quintessential judicial functions by the State” as a result of the repeal.
Section 34 had created an avenue for persons charged with certain offences including fraud which was before the court for more than ten years to have it dismissed by the High Court.
Ferguson, Ishwar Galbaransingh, Edoo and the three companies — Maritime Life (Caribbean) Ltd, Maritime General Insurance Co Ltd and Fidelity Finance and Leasing Co Ltd—had filed the applications for dismissal before the section being repealed.
Those matters had been ongoing for more than a decade before the proclamation of the Act.
The repeal of the section prompted the men and businesses to file the constitutional motions which were later struck down by Justice Mira Dean-Armorer at the High Court on April 5.
The preliminary enquiry was being heard before Magistrate Ejenny Espinet at the Port of Spain Court but was brought to a temporary halt earlier this year by the Court of Appeal pending the outcome of the latest appeal hearing.
“There is substantive unfairness. Those (amended) acts of the legislature violate due process and the common law. Is it right? Is it just to continue the prosecution against the background of these historical facts (of legitimate expectations)? The answer is no,” said Fitzgerald in his submissions.
Michael Beloff QC, Senior Counsel Sophia Chote along with Vijay Deonarine are seeking the interest of Edoo and the companies while attorney Ian Benjamin SC, is representing the DPP. The matter will resume this morning.