Solomon: Appeal Court has no authority to review magistrate’s inquiry order

When a magistrate sits to conduct a preliminary inquiry he is not performing a judicial function but an administrative one,  submitted Frank Solomon SC, yesterday to the Court of Appeal.

He further argued that the inquiry is not a “court”, either of summary jurisdiction or at all and the magistrate does not “hear and determine anything.” What the magistrate does is to investigate and make a recommendation. Therefore it is questionable whether the jurisdiction of the Court of Appeal under section 36 of the Supreme Court of Judicature Act can be invoked to review proceedings in a preliminary inquiry, Solomon said.

Solomon was at the time responding to an application by Director of Public Prosecutions Geoffrey Henderson, asking the Court of Appeal to review the decision of Chief Magistrate Sherman McNicolls for disclosure of a list of all relevant documents and statements the prosecution has in the fraud cases against former Minister of Finance Brian Kuei-Tung, former Minister of National Security Russell Huggins, Ishwar Galbaransingh, Amrith Maharaj, Steve Fergueson, John Smith, Renee Pierre and Barbara Gomes, who  are jointly charged with Maritime Fidelity Finance and Leasing Company and Northern Construction Limited (NCL), with conspiring to defraud the Airport Authority of over $19 million by false pretences between July 26 and December 21, 2002.

All accused were represented by a battery of lawyers which included Solomon, Alan Alexander SC, Russell Martineau SC, Desmond Allum SC, Vernon de Lima, Fayad Hosein, Reginald Armour, Devesh Maharaj, Gillan Lucky and Rajiv Persad. Gilbert Peterson represented the prosecution. Hearing the application were Justices of Appeal Margot Warner (President), Rolston Nelson and Stanley John. According to Solomon, the review of the functional evolution of the duties of an enquiring magistrate will show that section 36 does not encompass the review of proceedings before him since such proceedings do not emanate from a court, inferior or otherwise. He submitted that the term “judgement or order or proceedings” in section 36 refers only to a final order, and a preliminary inquiry does not finally determine the right of the parties. He said the court may only exercise its power under section 36 in cases of “material error” which arise only when there is a material procedural irregularity or lack of due process, as a result of which a person had suffered real prejudice or substantial adverse consequences. This was unlike the instant case where Mc Nicolls’ order for disclosure was simply for the better management of the case.

Peterson argued that the prosecution has disclosed documents to the defence but that they are not entitled to the statement of witnesses the prosecution intends to call or know their identity at this stage, and that the order of the Chief Magistrate if not set aside,  will have the opposite effect. He said there are occasions on which the prosecution in its discretion decides to disclose the identity of its witnesses, but that will be at the option of the prosecution and not under any duty. He affirmed that the rules of disclosure in the authority of Ferguson and McNicolls are clear and adequate to ensure fairness to the accused in the proceedings. “The requirements of fairness do not and cannot require advance notice to be given to the defence of the list of witnesses and the documents which are or have been in the possession of the prosecution. There is no justifiable ground in this case for extending the limits of disclosure laid down by this honourable court and the Privy Council.”

However, Solomon argued that the order of Mc Nicolls was not an order for disclosure of any statements or the contents of any documents including witnesses’ statements. The order does not in fact require the State to identify or indicate the names of persons whom it intends to call as witnesses, but only for a list of the documents. If on that list there are privilege documents, then the magistrate could adjudicate on it, he advised. According to Solomon, the order was made in the context of administrative chaos and massive confusion which was aimed at assisting Mc Nicolls in ultimately adjudicating on the several issues of disclosure which required to be solved. He told the court that Mc Nicolls made it clear that his ruling was not a disclosure order, and argued that the state would not suffer prejudice by the order. The order, he insisted, was made to assist the magistrate. The matter did not finish in a day’s sitting as anticipated and was therefore adjourned to May 13, when other counsel would make their submissions.