Court rules against DPP in Panday case
By JADA LOUTOO Tuesday, April 15 2014
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A HIGH Court judge has ruled that Director of Public Prosecutions Roger Gaspard, SC, will not be able to reopen the integrity trial of former Prime Minister Basdeo Panday, who was alleged to have failed to declare his London bank account to the Integrity Commission.
Justice James Aboud yesterday set aside the order sought by the DPP to quash the decision of Magistrate Marcia Murray, who in June 2012 ruled that it would be unconscionable to permit the case against Panday to continue, because she was not satisfied the issue was fully and fairly investigated by the Integrity Commission and DPP, before charges were laid.
Panday’s attorneys filed an application asking that the leave granted in September 2012 to the DPP to have the magistrate’s decision reviewed, be set aside. The DPP filed the judicial review claim three months after Panday’s acquittal in the Magistrates’ Court.
Aboud held that there was delay on the part of the DPP to file the application for judicial review, adding that he found no reasonable explanation given by the DPP for doing so.
The judge said Panday’s rights would have been prejudiced and he would continue to face such prejudice and hardship if the DPP was to continue the prosecution of him. However, Aboud pointed out that the DPP also had a right to obtain a comprehensive statement from the court that the magistrate misaligned.
He said to leave the decision of the magistrate “undisturbed” and her findings must be tested.
Murray, in giving her reasons, held that “in cases of false declarations made under the act, the Integrity Commission plays a ‘pre-prosecution’ role in that only after it has conducted its due process can it refer persons to the Director of Public Prosecutions. For these purposes, the Integrity Commission is a critical part of the Executive which makes the decision to prosecute,” and must be tested. “The Integrity Commission failed to comply with the provisions of the act under which it is constituted when it did not advise the President to appoint a tribunal to enquire into Mr Panday’s declarations. Mr Panday was not given an opportunity, to which he was entitled, to be heard by a properly constituted tribunal,” she ruled.
Aboud said good administration dictated that the law be evaluated, but not so as to offend Panday’s public law rights.
“The importance of the Integrity in Public Life legislation in our republic is especially important in modern times and cannot even slightly be underestimated,” Aboud said.
While he threw out the application for the magistrate’s decision to be quashed, Aboud said he will continue to hear the application for declarations that Murray’s decision was illegal and irrational.
He also warned that he will not grant an order of mandamus for the resumption of the integrity trial or for a third trial to be held but said it was open to the DPP to seek alternative remedies if he wished to reopen the case.
Panday was alleged to have failed to declare the assets of the account, amounting to approximately $1.6 million, held at the National Westminster Bank at Wimbledon Hill Road, London, for the years ending 1997, 1998 and 1999. He was prime minister at the time. Panday was found guilty and sentenced in March 2006 by Chief Magistrate Sherman Mc Nicolls to two years in prison.
Panday appealed Mc Nicolls’ decision and the conviction was eventually quashed by the Court of Appeal and a retrial ordered. The Court of Appeal’s decision was upheld by the Privy Council.
The decision was not appealed to the Court of Appeal during the prescribed deadline and a judicial review application was instead sought by the DPP.
Aboud referred to the length of time between Panday’s alleged offences and when he was eventually brought to trial, his age (81) as well as the money he had spent on legal fees for defending the charges.
“The good administration of justice requires that Panday should not have been kept in suspense,” Aboud said.
Panday’s attorneys have indicated that they were likely to appeal Aboud’s ruling.
Gaspard was represented by Ian Benjamin, while Ricki Harnanan is representing Panday. Senior Counsel Avory Sinanan and Larry Lalla are representing the magistrate’s interest in the case.