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PRISONER’S CASE UNDER REVIEW

By Jada Loutoo Friday, May 2 2014

click on pic to zoom in

Registrar of the Supreme Court Marissa Robertson has referred to the Law Association the concerns raised by Master Patricia Sobion-Awai in her February 5 decision in the Jamal Sambury assault claim against the State.

Newsday understands Robertson’s referral was received by the Law Association, which has the option to trigger Section 37 of the Legal Profession Act and have its Disciplinary Committee take any disciplinary action that may be warranted.

Sobion-Awai in her ruling found that Sambury sought to mislead the court as to his injuries and the actual circumstances of his assault and battery by lifting significant portions of court filings from previous cases by prisoners making claims against the State.

She found the conduct of litigation by Sambury to be dishonest and an abuse of the court, but did not strike out the assessment of injuries and compensation since she found that he had in fact suffered injuries.

Newsday was told the Law Association was treating the Registrar’s referral “with urgency”.

Disciplinary Committee matters are confidential and are heard in-camera. The Committee, which comprises of 15 lawyers and is headed by Senior Counsel Gilbert Peterson, meets every Tuesday and Thursday and investigates whether attorneys have committed an act of professional misconduct.

According to Section 37 of the Legal Profession Act, which sets out the procedure for complaints to the committee, said, “A client or, by leave of the Committee, any other person alleging himself aggrieved by an act of professional misconduct (including any default) committed by an attorney-at-law, other than the Attorney General or a law officer, may apply to the Committee to require the attorney-at-law to answer allegations contained in a statutory declaration made by such person, and the Registrar or any member of the committee may make a like application to the Committee in respect of allegations concerning any professional misconduct or any such criminal offence as may for the purposes of this section be prescribed by the Council with the approval of the Chief Justice.”

Sub-section (2) of the Act reads, “In any matter or hearing before any Court, where the

Court considers that any act of professional misconduct or any criminal offence prescribed under subsection (1) has been committed by an attorney-at-law other than the Attorney General or a law officer, the court may make or cause the Registrar to make an application to the Committee in respect of the attorney-at-law under that subsection.”

The Committee also has the power to dismiss the complaint; impose a fine on the attorney and reprimand the attorney and also remove the person’s name from the Roll. If the Committee recommends the removal from the roll or suspension from practice, it has to forward a copy of the proceedings before it to the Chief Justice and the Attorney General.

Almost one month after the State in the Sambury matter sought to have the prisoner’s witness statement struck out, former Solicitor General (SG) Eleanor Donaldson-Honeywell wrote to Prime Minister Kamla Persad-Bissessar on August 30, 2013, asking her to investigate circumstances, “that may amount inter alia to breaches of professional ethics by the attorneys involved and may have the effect of perverting the course of justice in litigation against the State”.

She referred to the retaining of lawyers by the Office of the AG who defended the State in civil law claims while going against the State in prison litigation.

In her letter to the Prime Minister, the former SG also referred to the concerns raised by Sobion- Awai.

Persad-Bissessar on Wednesday, instructed Attorney General Anand Ramlogan to investigate concerns raised by Donaldson-Honeywell as it related to matters involving lawyers engaged in prison litigation. He is looking into the matter with Acting Solicitor General Carol Hernandez, Commissioner of Prisons Conrad Barrow, Inspector of Prisons Daniel Khan, Minister of Justice Emmanuel George and Chief State Solicitor Christophe Grant.

In a separate statement, the Law Association called for an independent investigation. “In light of the allegations which may constitute an abuse of process and/or perversion of the course of justice and which have the potential to undermine the administration of justice.”

The Association, however, asked for full disclosure of all allegations and supporting facts.



The Master’s ruling

Master Patricia Sobion-Awai in her ruling found that Sambury sought to mislead the court as to his injuries and the actual circumstances of his assault and battery by lifting significant portions of court filings from previous cases by prisoners making claims against the State.

She found the conduct of litigation by Sambury to be dishonest and an abuse of the court, but did not strike out the assessment of injuries and compensation since she found that he had in fact suffered injuries.

The Master refused to strike out Sambury’s claim and witness statement as it was not the ‘worst of its kind’ although she found the breach to be ‘serious.’

“There were other ways of penalising wrongdoers and deterring false claims apart from striking out,” she held, and expressed her concerns about the ‘copy and paste’ exercise.
“There was a quite deliberate exercise of “cut and paste” undertaken to create the claimant’s witness statement from the earlier statement . To my mind, it was implausible that two persons could experience separate events involving different persons in such an identical manner,” the Master held.

“Moreover when one looked at the shared grammatical errors, phrasing and sequence of events, the similarities were so startling that the only reasonable conclusion was that the claimant copied and presented as his own sizable portions of the witness statement of Jamal Fortune,” she noted.

“It was significant that the claimant offered no explanation for the obvious copying and use of another person’s witness statement . In the absence of any explanation, I concluded

that the copying was done deliberately in an effort to mislead the court and obtain a larger award than that to which the claimant was entitled.”

“The inconsistency between the medical evidence and the claimant’s alleged
injuries reinforced my finding that the claimant copied portions of his witness statement and exaggerated his claim to get a larger award,” she added.

She concluded that the extent to which the practice of copying the witness statements of successful litigants exists in this jurisdiction, particularly among the prison population was uncertain .

“However it is clear that it did occur in this case. This is a matter for concern. What occurred in this case calls for an investigation of some sort to determine where responsibility lies and what action can be taken to prevent future abuses of this type . Attorneys must caution their clients about misrepresenting facts in their witness statements and about presenting fraudulent claims. Litigants must be made aware that contempt proceedings may be pursued with imprisonment as a probable outcome,” Sobion-Awai warned.

That assessment hearing comes up on May 21 in the Port-of-Spain Masters Court.

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