Magistrate frees Panday
By DENYSE RENNE Wednesday, June 27 2012
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FOR DEFENCE: David Aaronberg...
THE Integrity Commission and how it operates came in for severe criticism yesterday by a senior Port-of-Spain magistrate who dismissed a case against former prime minister Basdeo Panday for failing to declare his London bank account.
In delivering her ruling, Senior Magistrate Marcia Murray slammed the Commission, which is currently chaired by Ken Gordon, for flouting its own laws in the matter regarding Panday. At the time that Panday’s matter was before it, Gerard des Iles — now deceased — was the commission’s chairman.
“It is the court’s view that the misconduct of the Integrity Commission was so serious that it would undermine public confidence in the criminal justice system and bring it into disrepute,” Murray said.
As a result of this, Murray said, “It would be unconscionable to permit this case to continue as the court cannot be satisfied that this matter was fully and fairly investigated by the Integrity Commission and Director of Public Prosecutions before these charges were laid.”
The magistrate said that having regard to several instances of abuse of executive power the Court’s sense of justice and propriety would inevitably be offended and as a result the trial must be stopped.
Panday, 79, who was also the political leader of the United National Congress (UNC) was before the courts charged with failing to declare his London bank account. This was his second re-trial.
Murray referred to the substance of the charges as “fruit of a poisoned tree which was the product of the Integrity Commission’s misconduct.”
Murray stated, had it not been for such misconduct, “these proceedings would not have arisen.”
Following Murray’s ruling, an exhausted looking Panday told Newsday: “This has been a weight on my back for more than ten years and I feel relieved it’s over. There have been many ups and downs in this matter and I want to thank my team of attorneys.”
Asked whether he expected the outcome, Panday said he tried not to anticipate the matter and always hoped for the best. Contacted as to the next step in the matter, Director of Public Prosecutions Roger Gaspard said, “I am considering my options and the decision of the magistrate.” Gaspard said he will have to evaluate Murray’s reasons for dismissing the case. Gaspard said he will also have to speak with lead prosecutor in the matter Sir Timothy Cassell “on the way forward.”
In court yesterday, Murray also pointed out that the commission failed to comply with provisions of the very same Act under which it is constituted. She said the commission failed to advise the President to appoint a tribunal to enquire into Panday’s declaration.
“Mr Panday was not given the opportunity, to which he was entitled, to be heard by a properly constituted tribunal. The referral of Mr Panday’s declarations to the Director of Public Prosecutions was therefore ill-conceived and it matters not that the Director of Public Prosecutions found there was sufficient evidence to lay charges,” Murray said.
The DPP at the time was Mark Mohammed, who is now a sitting High Court judge. Murray said it was the Court’s view that failing to accord Panday due process under the Act amounted to misconduct on the part of the Integrity Commission.
Murray further condemned the actions of the commission saying it was apparent it proceeded as if it was investigating allegations or complaints made by a member of the public on corrupt or dishonest conduct.
Saying the commission knew it was proceeding in this way and not in the way prescribed in its own Act, for dealing with declarations, Murray said, “The Commission therefore failed to follow the provisions of the Act which specifically deals with filed declarations.”
Last month, Panday suffered a blow to his defence when Murray dismissed a no case submission application on the ground that he had no case to answer. Queen’s Counsel David Aaronberg who led Panday’s defence put forth arguments that political involvement formed the basis for Panday being charged.
Aaronberg had asked the Court to stay proceedings on the basis that to continue would offend the Court’s sense of justice and propriety, having regard to all the circumstances of the case.
In outlining the chronology of events which led to Panday being investigated, Aaronberg argued it was on the basis of there being an abuse of process and as such the matter should be stayed. This ground was struck-out by Murray.
The State on the other hand, dismissed the defence explanation, claiming that Panday knew about the London account at the Nat West Bank in Wimbledon, London yet failed to make declarations under the Integrity in Public Life Act 1987.
Financial accounts showed to the court revealed at the end of December 1997, there was about TT$110,000 in the London account, and in the space of two years this amount had increased in excess of TT$1 million.
Panday’s roller-coaster ride of legal woes began on April 24, 2006, when then Chief Magistrate Sherman McNicolls found him guilty on three counts of failing to declare a London Bank account to the Integrity Commission for the years 1997, 1998 and 1999, in violation of Section 27 (1) (b) of the Integrity in Public Life Act of 1987.
He was sentenced to six years imprisonment — two years for every count — which were to run concurrently. In addition to his imprisonment, he was fined $60,000 ($20,000 for each count), failure of which, he would serve an additional sentence of three years hard labour.
Moreover, Panday was ordered to pay the State roughly TT$1.6 million by way of forfeiture, representing the money he failed to declare to the Integrity Commission.
Prior to being granted bail, Panday spent five days at the Maximum Security Prison. On March 20, 2007, the Court of Appeal quashed the conviction and sentence imposed by McNicolls.
The Appeal panel which consisted of Justices Margot Warner (now retired), Ivor Archie (now Chief Justice) and Paula-Mae Weekes, in their ruling said there was apparent bias in Panday’s trial and as such declared the conviction “unsafe.” They ordered a re-trial.
Appearing alongside Aaronberg were attorneys Anand Beharrylal and Panday’s daughter Mickela Panday, while attorney Anju Bhola and Renuka Rambhajan appeared alongside Sir Timothy for the State.