Appeal Court dismisses application on ‘disclosure’ issue

The Court of Appeal yesterday dismissed an application by two former Government ministers and others for leave to go to the Privy Council to challenge the recent Court of Appeal ruling, striking down Chief Magistrate Sherman McNicolls’ decision on “disclosure” in the Piarco Airport fraud case. However, attorneys for the applicants indicated their intention to appeal the Court’s rejection of their application to the Privy Council. The Court of Appeal had ruled that McNicolls had exceeded the limits of his function when he made a ruling that the State should provide the accused and the Court a list of all documentation, and state its connection with regard to the various charges against the accused. In dismissing the motion, Chief Justice Sat Sharma pointed out that the application was “cloaked in language” to give the appearance that the issues raised at the level of the High Court and the Court of Appeal were constitutional, when in fact they were not.

The Court which included Sharma, Justice Rolston Nelson and Justice Stanley John, said that no constitutional grounds were agitated before the court below or the Court of Appeal, and therefore, counsel cannot come at this time to say that leave is being sought to raise constitutional issues before the Privy Council. The Court emphasised that it was willing to consider the application, but not as a constitutional issue. Attorneys for the applicants, Fayard Hosein and Devenish Maharaj, accepted that while the issue raised in the matter was not tackled as a constitutional protest, the basis of their objections was of a constitutional nature, and especially now in light of the Court of Appeal’s ruling against McNicolls. Hosein argued that it brought into question the constitutional issues of the right to due process and the right to a fair trial, among other things. The application was filed on behalf of former Government Ministers Brian Kuei Tung and Russell Huggins, businessmen Ishwar Galbaransingh, Amrith Maharaj, John Henry Smith, Renee Pierre, Barbara Homes, and Steve Ferguson, together with Fidelity Finance Leasing Company Ltd, Northern Construction Ltd and Maritime General Insurance Co Ltd. These men are before McNicolls charged collectively with 21 offences of common and criminal matters, including fraud.