Thursday, September 13 2012

DIRECTOR of Public Prosecutions Roger Gaspard has added his voice to the raging public rancour over the controversial Section 34 of the Administration of Justice (Indictable Proceedings) Act, saying its proclamation on Independence Day also took him by surprise. He also said Attorney General Anand Ramlogan must have had the clause in mind when he decided not to file an appeal in the extradition of former UNC financiers Ishwar Galbaransingh and Steve Ferguson, in December, last year.

In a statement issued late Tuesday, the DPP made it absolutely clear that it was not his intent to forego prosecution of those in the Piarco 1 case, saying because of overlapping defendants with Piarco 2, and the obvious oppression and impossibility in having them before the High Court on indictment while the preliminary inquiry was ongoing, he chose instead to have one joint trial to save judicial time and abridge costs. “Hopefully, the situation can still be retrieved and the ramparts of the State’s right to prosecute these matters remain intact, as they properly should,” he said.

The new law abolishes the preliminary inquiry procedure normally adopted to screen serious criminal cases and calls for a Master of the Court to review evidence to determine if the matter should go to a full trial. Several persons in the legal and political fraternity have expressed alarm over the clause, saying there was never consultation on the clause, which was yesterday expected to be repealed by Government in the Parliament. The Senate will sit today to undergo the same task. The suggestion to have the controversial clause repealed with retroactive effect was Gaspard’s. Government’s proposal for the repealing of the bill was done with a provision allowing for the permanent staying of all applications brought under Section 34.

The controversial Clause 34 has seen accused persons petition the courts for freedom of prosecution for decades-old cases, the most prominent being persons who are being prosecuted for fraud in the Piarco Airport expansion project, including Ferguson and Galbaransingh.

In an eight-page statement, issued late Tuesday night, Gaspard detailed his limited involvement in drafting of the legislation, which he said he was consulted on in March 2011.

He said he could not comment on the controversial section 34 as it was not contained in the draft bill which was sent to him.

“I could not comment on section 34 of Schedule 6 as now contained in the Act because they were not in the draft bill kindly sent to me by the Minister of Justice. I had never been asked to comment on the significance of section 34(2) and 34(3), prior to the bill being introduced into the Parliament of Trinidad and Tobago on November 11, 2011,” Gaspard said.

According to the DPP, the original Clause 34 of the bill was first introduced in November 2011 and as then drafted “would not have affected” the Piarco prosecutions.

“It also did not concern the date when offences were alleged to have been committed as a basis for discharge,” he said.

Gaspard noted that Clause 34 was changed on November 29, 2011, on a motion in the Senate by Justice Minister Herbert Volney. “The effect of that change was to prevent the prosecution of offences not covered by Schedule 6 where the conduct alleged occurred more than ten years ago. Again, I stress that I was not consulted on this change to Clause 34 of the bill,” Gaspard said. This change to the legislation in the Senate occurred 22 days after Justice Ronnie Boodoosingh quashed the AG’s decision to sign the extradition warrants against Ferguson and Galbaransingh. The legislation, which by then contained the controversial clause, was assented to by the President on December 16, 2011, three days before Ramlogan indicated he would not pursue the Ferguson and Galbaransingh extradition appeal.

“Doubtless, when he announced that decision, the Attorney General must have had in mind the provisions of Section 34,” Gaspard reasoned. According to the DPP, Schedule 6 appeared to have been selected by category rather than gravity.

“They do not for example include sedition, terrorism, piracy, money laundering or offences under the Larceny and Forgery Acts. This has the potential to disfigure the international visage of Trinidad and Tobago, especially since some of these offences and fraud tend to involve delayed detections and lengthy investigations spanning several jurisdictions,” the DPP noted. The charges for which the 10-year provision do not apply include treason, murder, conspiring to murder, manslaughter, kidnapping, kidnapping for ransom, rape, grievous sexual assault, sexual assault with 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. Gaspard also noted that having consulted with legal luminaries, both locally and abroad, no one could find any legislation that parallelled Section 34, in the entire Commonwealth. Gaspard also noted that in light of the AG’s statement when giving reasons not to appeal in the extradition case and the respective stakeholders were not in a state of readiness for the implementation of the Act, “it could not be reasonably expected that the Act and in particular Section 34 would come into operation in the opaque fashion that it has.” He said in February, the Justice Ministry requested that he indicate the number of matters to which the ten-year clause would apply.

On May 22, the DPP said his office advised that there were 47 matters for which committal papers have been received for offences committed more than ten years ago and which were not covered by Schedule 6. “It should be noted that to date we have only received committal documents for Piarco No 1. Piarco No 2 is still the subject of a preliminary inquiry- although those proceedings are coming to an end, the prosecution having closed its case,” Gaspard said.

The next hearing for the Piarco 2 prosecution is tomorrow.

He said he only found out about the proclamation of Section 34 on Independence Day, again adding that it took him by surprise.

“I should stress that I am satisfied that even without this provision, the right of an accused to a fair trial is and always has been properly protected, especially in the case of inordinate delay. This is because of the very well known powers of judges to stay proceedings when they find that an accused person has suffered irreparable prejudice, whether actually or presumptively and thus cannot have a fair trial,” he said.

He said Sections 34 (2) and 34 (3) automatically terminated prosecution of the offences which are the subject of the Piarco 1 and 2 prosecutions, solely on the basis that they were committed more than ten years ago.

“This is without regard to any other issue concerning the fairness of the trial process, such as the contribution of the defendants as it pertains to the issue of delay,” Gaspard said.

The DPP went further to say that on September 10, he wrote to Ramlogan expressing his grave concerns about the new Act and suggested to him that as a matter of extreme urgency Section 34 of the Act be repealed immediately with retroactive effect. Gaspard said he also wrote to the AG again the following day advising him that any remedial legislative action taken in respect of Section 34(2) and 34 (3) must expressly indicate that it is of retrospective effect and should override Sections 4 and 5 of the Constitution since it involves the removal of existing rights of action.

He said the decision to convene Parliament to have the offending Section 34 repealed was a “useful first step by way of corrective legislative action since I am of the unflinching view, that the current state of affairs cannot be allowed to remain extant, especially having regard to the public interest,” Gaspard said.