New trial for Basdeo Panday
By FRANCIS JOSEPH
NEWSDAY
Guyana Chronicle
March 21, 2007
PORT-OF-SPAIN -- The Court of Appeal yesterday quashed the conviction and sentence imposed on former Prime Minister Basdeo Panday last year for failing to declare his London bank account to the Integrity Commission.
But Panday did not walk away free as the court ordered that he face a re-trial before another magistrate at the Port-of-Spain Magistrates’ Court. No date has been set, but Panday remains on $350,000 bail.
Outside the Hall of Justice, a relieved Panday told reporters, “I’ve always known that almighty God will not place upon my shoulders a cross heavier than I can bear. I know that hundreds and maybe thousands of persons have been praying for me. I want to thank them for their prayers and I want to thank God too for answering their prayers.”
By a unanimous decision, the Court of Appeal agreed that ‘interconnecting circumstances’ contributed to Panday’s conviction and sentence being unsafe.
Panday, 74, the interim leader of the United National Congress (UNC), was convicted by Chief Magistrate Sherman Mc Nicolls on April 24, 2006 and sentenced to two years in jail. Panday was also ordered to pay $60,000 in fines along with $1.6 million which represented the proceeds in the London bank account.
Panday was charged with knowingly failing to declare his Natwest Bank account at Wimbledon, London, to the Integrity Commission for the years 1997, 1998, and 1999 as required under the Integrity in Public Life Act 1987.
Panday appealed and in January, the Court of Appeal heard submissions on the issue of apparent bias. Panday’s lawyers contended that there was ‘apparent bias’ by Mc Nicolls. The court reserved judgment on January 24, but on March 8, the Court of Appeal reopened the appeal following the decision of Mc Nicolls not to testify in a criminal case against Chief Justice Sat Sharma three days earlier.
Mc Nicolls’ decision not to testify caused the case against Sharma to collapse. The court heard further submissions on Monday from both sides before reserving their decision to yesterday.
Long before the 1.30 p.m. hearing, supporters of the UNC had gathered outside the locked courtroom. It was evident from very early that there were not enough seats in the courtroom.
Judges Margot Warner, Ivor Archie and Paula Mae Weekes walked into the court promptly at 1.30 p.m. Warner immediately indicated that the court had an oral ruling, saying that written reasons would be given at a later date.
She pointed out that after the court had reserved their judgment on the bias point, came the news that Mc Nicolls was unwilling to testify against Sharma on a charge of attempting to pervert the course of public justice.
Warner said the argument before the court was on ‘apparent bias’ and not on the state of the evidence before the Chief Magistrate. She pointed out there had been a series of interconnecting circumstances which might have had an effect on the fair-minded observer.
Warner said the test was whether a fair-minded observer would conclude whether Mc Nicolls’ decision was tainted by bias. She said there must be public confidence in the administration of justice and that there must be purity in the process.
She said the court, sitting in place of the fair-minded observer, came to the conclusion there was some sort of bias in the criminal trial and therefore, the court moved to quash the conviction and sentence.
Warner then asked for assistance on whether there should be a re-trial. Sir Timothy Cassel QC, who represented the State, immediately rose and asked for a re-trial. He said the evidence was strong and cogent. He said the prosecution was not to be blamed for what happened after the trial.
Ramesh Lawrence Maharaj SC, who appeared for Panday, resisted the idea of a re-trial. He asked the court to stay the proceedings as an abuse of process.
He added, “since Panday’s trial, it has become clear from a wealth of new evidence that the Government had applied political pressure to secure the conviction of its principal political opponent, which resulted in a prison sentence, forfeiting Panday’s right to sit as an MP and debarring him from running in the general election to take place later this year.”
Maharaj said the decision to prosecute Panday arose out of a political decision to target him for prosecution for three offences under the Integrity Act 1987.
ARCHIE: A lot has been said of the prosecution of the Chief Justice. You are saying the prosecution of the appellant was as a result of him being deliberately targeted? We have made no such finding, where is the evidence?
MAHARAJ: Based on what we are submitting, we are saying the application of political pressure on the Chief Magistrate is an abuse of process.
WARNER: Is your case based solely on political pressure?
MAHARAJ: Targeting of Mr Panday and non disclosure by the State and by the Chief Magistrate who did not want to testify.
ARCHIE: Which prosecution?
MAHARAJ: Where there is alleged abuse of process, one looks at whether there was contamination, whether direct or indirect.
WARNER: If there is to be a re-trial, would you not take that point there?
MAHARAJ: That question could be raised at any level.
The judges rose for 20 minutes. On their return, Warner said the Court of Appeal was not the proper forum to raise the abuse of process point. She said it was appropriate to do so before the magistrate. She then ordered a re-trial for Panday.