Appeal Court quash McNicolls order in Airport fraud case

The Court of Appeal ruled yesterday that Chief Magistrate Sherman Mc Nicolls exceeded the limits of his function when he ordered the prosecution in the Piarco Airport fraud case to furnish the defence with a list of all the documents it intends to use.

The Court, however, ordered that the mass of material already disclosed to the defence must be organised properly and distributed to the defence as they relate to each accused. No order was made to costs. McNicolls was directed to continue with the inquiry which the Court said had been adjourned on several occasions because attorneys could not agree on disclosure. Former Government Minis-ters Brian Kuei Tung and Russell Huggins, business persons Ishwar Galbarasingh, Amrith Maharaj, John Henry Smith, Renee Pierre, Barbara Gomes and Steve Ferguson, together with Fidelity Finance Leasing Com Ltd, Northern Construction Ltd and Maritime General Insurance Co Ltd, are before McNicolls charged collectively with 21 offences on common and criminal matters, including fraud. The Director of Public Prosecutions, Geoffrey Hen-derson, appealed McNicolls’ ruling, and the accused made an application to become involved in the proceedings. McNicolls had ordered the defence to make a list. 

In a 25-page judgement by Justice Margot Warner, the Court said that Mc Nicolls’ direction to furnish a list to the accused and to the court does not change the position, nor can it be categorised as an administrative directive, as was suggested by attorneys representing those facing fraud charges. The Court, which included Warner (President), Justice Rolston Nelson and Justice Stanley John, said that since the issue could not be resolved by reasonable discussion between counsel, in good faith, and in  a practical manner so that the matter could proceed without further delay, the Court decided to give directions on how attorneys should proceed on the issue of disclosure. The Court accepted that defence attorneys had already been furnished with a large mass of material... and that disclosure has been made in a disconnected and piecemeal fashion. In order to bring sanity to the chaos, the Court ordered: “That on or before June 14, 2003, the DPP serve on the relevant attorneys-at-law for the interveners (defence), in relation to each charge, a list of all relevant documents disclosed.”

On another issue raised as to whether the Court of Appeal had jurisdiction to hear the matter (interlocutory), which was described by the defence as an administrative directive by the Magistrate and not one of material error, the Court also did not agree with that submission. On the other hand, the Court warned that it will discourage interlocutory appeals, but will intervene where the discretion of the prosecution as to the withholding of information and the timing of disclosure, in the context of limited obligation to disclose might be rendered nugatory or subverted by an order of the magistrate. The interveners were represented by a battery of lawyers which included Allan Alexander SC, Frank Solomon SC, Russell Martineau SC, Desmond Allum SC, Fayad Hosein, Reginald Armour, Gillian Lucky and Rajiv Persad, while Gilbert Peterson was for the DPP.