(TRINIDAD GUARDIAN) — The protracted “Piarco Two” preliminary inquiry into fraud charges arising out of the construction of the $1.6 billion Piarco International Airport has to be restarted.
The decision to restart the inquiry, which is quite possibly the longest-running and largest fraud case in the country’s history, was based on the retirement of former Senior Magistrate Ejenny Espinet, who left the Judiciary last year with the inquiry at an advanced stage, but still incomplete.
Last year, the Office of the Director of Public Prosecutions (DPP) attempted to utilise Section 23(8) of the Indictable Offences (Preliminary Enquiry) Act 2005 to have the indictments for the charges filed in the High Court, without the inquiry, over whether there is sufficient evidence to warrant the charges, being completed.
The legislation empowers the DPP’s Office to take such action in circumstances where magistrates have heard evidence which discloses a prima facie case but fail to complete the preliminary inquiry due to physical or mental infirmity, resignation, retirement or death.
The move was challenged by some of the persons and companies before the inquiry- businessmen Steve Ferguson and Ishwar Galbaransingh, former Finance Minister Brian Kuei Tung and government officials Peter Cateau and Tyrone Gopee.
Delivering a 45-page judgement at the Hall of Justice in Port-of-Spain, yesterday morning, High Court Judge Devindra Rampersad upheld the group’s challenge.
Rampersad ruled that the legislation contained a provision that stated that it only had effect after September 2005.
Although the DPP’s Office claimed that the case started well after the deadline as Espinet was forced to deal with a myriad of preliminary legal issues before its first witness eventually gave evidence in 2008, Rampersad ruled that the case began as the men were first charged and hauled before the court in May 2004.
“Any other interpretation would be to render the administrative or case management steps as existing in limbo without any statutory underpinning as to powers and jurisdiction. There is nothing unduly complex with respect to this finding,” Rampersad said.
Rampersad also stated that he did not have to analyse Hansard records to determine whether Parliament intended the legislation to have a retrospective effect.
“In any event, however, if even the court is wrong on that, it is obvious that the parliamentary debates supported this very same conclusion,” Rampersad said.
As part of his ruling, Rampersad granted a declaration that the DPP’s Office is expressly barred from using the legislation and another that the claimants can only be lawfully committed to stand trial after a fresh preliminary inquiry before a new magistrate.
He also ordered that the State pay the group’s legal costs for bringing the lawsuit.
Contacted yesterday evening, DPP Roger Gaspard, SC, said his office was yet to decide whether it would appeal Rampersad’s judgement.
“Considering my legal options. Need to confer with my legal team,” Gaspard said in a text message response.
If the judgement is not appealed, the case will be randomly reassigned and then restarted.
The other persons, who did not file the legal challenge but will be affected by the outcome, are Amrith Maharaj, Raul Guitierrez, Ronald
Birk, Eduardo Hillman, Sadiq Baksh, Ameer Edoo, Renee Pierre and five companies associated with some of the men- Maritime General Insurance Company, Maritime Life (Caribbean), Fidelity Finance and Leasing Company, Northern Construction and Calmaquip Engineering Corporation. Edward Bayley was also before the inquiry but passed away during it.
This is the second time in recent history that such an issue with a magistrate has occurred.
In 2017, it arose after former Chief Magistrate Marcia Ayers-Caesar took up a judicial appointment with 53 preliminary inquiries still pending before her.
The Office of the Attorney General filed a statutory interpretation on what should happen to the cases, which also resulted in all them having to be restarted.
While most of those cases were quickly restarted and completed, it is unlikely that such is situation would occur with the Piarco inquiry due to the complex nature of the charges and the length of time that has elapsed since the offences were allegedly committed.
Ferguson, Galbaransingh, Cateau, Kuei Tung and Gopee were represented by Fyard Hosein, SC, Edward Fitzgerald, QC, Sasha Bridgemohan, Aadam Hosein and Annette Mamchan. Elaine Green represented the DPP’s Office.