DPP to decide on future of Piarco case

The Privy Council's ruling in a civil lawsuit quashing the committal of several people, including a former government minister, a group of business people and several companies accused of fraud and corruption, during the construction of the Piarco Airport terminal building over two decades ago, hangs in the balance. Director of Public Prosecutions. Roger Gaspard, SC, has discretion over whether it will continue or come to an end.

On Monday, the Privy Council held that the complaint by the accused of apparent bias against then Chief Magistrate Sherman McNicolls was sufficient to strike down their committal to stand trial before a judge and jury.

Attorney General Reginald Armour, SC, has not responded to a request for comment, even though the AG is listed as the defendant in the civil matter before the Privy Council. Communications Minister Symon de Nobriga was approached for comment, but referred the matter to the AG.

In a telephone interview on Monday, hours after the ruling, Gaspard referred to the public-interest considerations he would have to take into account before making a decision on the future of the matter.

"This is not an automatic decision, this is something that requires more mature consideration. The judgment only came out today (Monday).

"Whatever decision is made, fairness must be the touchstone," he said.

Among the factors, the DPP said he will have to take into consideration to proceed in the public's interest, according to the code for prosecutors, are: whether there is sufficient cogent evidence available, after the passage of so much time; the availability of witnesses; the fading memory of witnesses; the death of some state witnesses; the severity of the crime; the age of the matter; the parties involved; the breach of trust; and the allegations that directly affect public funds.

If the DPP feels the evidence meets that threshold, he can direct the matter to restart, But if he does not, the matter ends there. Section 90 (3)(c) of the Constitution gives him the sole discretion "to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority."

One prosecutor, who spoke on the condition of anonymity, said even though there is sufficient evidence to restart a matter after a lengthy delay, the DPP will still have to resolve whether it is in the public's interest to proceed.

According to the code for prosecutors, the DPP, in weighing the public interest in pursuing the matter afresh, will also take into account the significant cost to taxpayers expended over the last 22 years in the face of the worsening economic situation in the country.

In the event the matter is restarted, lawyers for the accused have already signalled their intention to argue that it would be an abuse of process for their clients to face a fresh inquiry after so much time has elapsed, and the fact that the previous hearing by the Chief Magistrate was tainted by apparent bias and political influence.

One prosecutor said if the matter is restarted before a new magistrate who is not affected by any apparent bias, the argument of abuse of process could fall by the wayside. And the magistrate can also determine the abuse-of-process claims or refer them to be determined by the High Court judge hearing the trial.

They said if the DPP decides to restart the inquiry, they intend to raise as a preliminary point before the presiding magistrate a constitutional argument that their clients cannot face a fair trial and it would be unfair for them to face a fresh inquiry. That matter, they said, will be referred to a High Court judge for determination, as a magistrate does not have the jurisdiction to determine constitutional rights.

In such a case, depending on the outcome and whether a stay of the enquiry is obtained, the arguments of abuse of process can be appealed to the Court of Appeal and the Privy Council, which can take another five or more years to conclude, one defence lawyer said.

In the Privy Council's ruling, the Law Lords said the decision of McNicolls to commit the accused to stand trial was tainted by apparent political bias.

Law Lords Hodge, Sales, Leggatt, Borrows and Malcolm heard arguments in the matter filed by John Smith and Barbara Gomes against the AG on March 16. Arguments for the appellants were led by local senior counsel Fyard Hosein, and included British QC Edward Fitzgerald, Joseph Middleton and Annette Mamchan, instructed by the law firm of Simons Muirhead and Burton. British QC Thomas Roe, instructed by the firm Charles Russell Speechlys, represented the AG.

The decision comes on the heels of a US judge’s ruling disqualifying Armour, and the US law firm Sequor Law from a multi-million-dollar civil-asset forfeiture case, on the basis of Armour’s previous work as an attorney for one of the defendants.

The disqualification of Sequor Law is under appeal in the US, but not the disqualification of Armour, according to government sources. The government has retained a new firm, White and Case, to pursue the appeal in the US.

The Piarco case in the US has been dragging on for the last 18 years and has cost taxpayers over $30 million.

The latest blow to the State’s case threatens to derail another set of criminal charges still under challenge in the local courts, legal sources said.

The Privy Council, in its analysis of the appellants’ case, linked the conviction of former prime minister Basdeo Panday, the move to impeach former chief justice Satnarine Sharma, McNicolls’ corruption claims against Sharma and the intervention of former AG John Jeremie. The panel supported the position that there was sufficient information in the public domain to support a claim of apparent bias.

McNicolls had dismissed an application to recuse himself on the basis of apparent bias, and the local courts upheld his decision.

The judgement said: “The above is sufficient for allowing both appeals.

“The constitutional claim succeeds because a tribunal which is seen to be impartial is part and parcel of both due process under section 4 (of the Constitution) and a fair hearing in terms of section 5.

“However, as will be apparent, if there were any doubt on the matter the observer would have a number of other important issues to assess.”

It said these would include “the absence of any reasoning for the Chief Magistrate’s dismissal of the recusal application and the transparent attempt to avoid scrutiny by labelling it as frivolous and vexatious.”

When all these “various sources of concern” were considered together, the Law Lords concluded, “The observer would be likely to agree with the appellants’ submissions that by January 2008 the Chief Magistrate was hopelessly compromised."

They conceded, “Given that everything was happening in the full glare of publicity his mind must have been in turmoil,” but nevertheless accepted the State’s submissions that if the bias challenge were to fail, there would be no scope for success in the claim for constitutional relief.

“The concerns as to due process and fair hearing are dependent on the same factors which underpin the judicial review (lawsuit). To countenance an inherently vague and novel challenge based on the alleged lack of moral authority of a judge who is otherwise entitled to preside would be something of a slippery slope and difficult to reconcile with established safeguards of judicial independence.”

For these reasons, the judgment said the board “allows both appeals and quashes the decisions of the Court of Appeal.”

It explained that in each case the Appeal Court had erred “by failing to hold that the test for apparent bias was satisfied and that recusal should have followed. Both the application for judicial review and the claim for constitutional relief are granted with the consequence that the Piarco I committal decision of 7 January, 2008, falls to be quashed. Any other consequential matters are remitted to the High Court.”

The ruling directly affects Piarco I and could also affect Piarco II, which was left unfinished after the magistrate hearing the case retired before completing the matter. A similar application of apparent bias was also made in that matter and was dismissed.

Lawyers say it is now open to the defendants to sue the State for compensation for the breach of their constitutional rights, as the Privy Council has referred this issued to back to the High Court.

The Piarco cases

The charges against former government ministers, a group of businesspeople and public officials stemmed from a multi-million-dollar investigation by Canadian forensic investigator Robert Lindquist in 2000.

In 2002, the first group were charged with offences alleging theft of $19 million during the construction of the Piarco Airport terminal between 1995-2000, in what is commonly referred to as the Piarco I corruption charges.

Those charged in that case are:

• Former finance minister in both the PNM and UNC administration Brian Kuei Tung

• Former PNM national security minister and attorney Russell Huggins

• Former Nipdec chairman Edward Bayley

• Maritime executives John Smith, Steve Ferguson and Barbara Gomes

• Ishwar Galbaransingh, chairman of Northern Construction Ltd

• Amrith Maharaj, financial director of Northern Construction Ltd

• Businesswoman Renee Pierre, then Kuei Tung’s companion.

• Smith was murdered in July 2021 and Bayley died after a prolonged illness in 2006.

In 2006 multiple charges were filed against several people, including American businessmen and companies, in a broader conspiracy to steal over US$200 million by setting up ghost companies, in what is referred to as Piarco II.

Those charged in that case included:

• President of Calmaquip Engineering Corporation Raul Gutierrez Jr, of Florida

• The principals of Birk Hillman – consultants in the airport project – Eduardo Hillman-Waller and Ronald Birk, also of Florida.

In 2007, Gutierrez, Hillman-Waller and Birk pleaded guilty to similar charges in Florida and were sentenced to prison terms ranging from six months to six years. They also agreed to pay US$4 million each in compensation to Trinidad and Tobago.

They were accused of conspiring between January 1, 1995 and December 31, 2001, to obtain contracts and payments totalling $1.6 billion during the construction of the new airport.

The offences are alleged to have occurred in the US, TT, The Bahamas and elsewhere between September 1, 1996 and December 31, 2005.

Powers of the DPP under Section 90 of the Constitution

90. (1) The provisions of this section shall, subject to section 76(2) have effect with respect to the conduct of prosecutions.

(2) There shall be a Director of Public Prosecutions for TT whose office shall be a public office.

(3) The DPP shall have power in any case in which he considers it proper to do so—

(a) to institute and undertake criminal proceedings against any person before any Court in respect

of any offence against the law of TT;

(b) to take over and continue any such criminal proceedings that may have been instituted by any

other person or authority;

(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.

(4) The powers conferred upon the DPP by subsection (3)(b) and (c) shall be vested in him to the exclusion of the person or authority who instituted or undertook the criminal proceedings, except that a person or authority that has instituted criminal proceedings may withdraw them at any stage before the person against whom the proceedings have been instituted has been charged before the Court.

(5) For the purposes of this section a reference to criminal proceedings includes an appeal from the determination of any Court in criminal proceedings or a case stated or a question of law reserved in respect of those proceedings.

(6) The functions of the DPP under subsection (3) may be exercised by him in person or through

other persons acting under and in accordance with his general or special instructions.