Fran­cis Joseph

High Court Judge, Ju­dith Jones, yes­ter­day or­dered that Mag­is­trate Ejen­ny Es­pinet must step down and not hear the re­tri­al of Op­po­si­tion Leader, Bas­deo Pan­day, who is fac­ing three charges of fail­ing to de­clare his Natwest Lon­don bank ac­count to the In­tegri­ty Com­mis­sions for the years 1997, 1998 and 1999.

In a 19-page judg­ment, de­liv­ered yes­ter­day, Jones grant­ed the de­c­la­ra­tions sought and or­dered that an­oth­er mag­is­trate pre­side over the re­tri­al, list­ed for next Jan­u­ary. Pan­day, a for­mer Prime Min­is­ter, was con­vict­ed by Chief Mag­is­trate Sher­man Mc Nicolls on April 24, 2006, and sen­tenced to two years in jail and or­dered to pay $1.6 mil­lion in com­pen­sa­tion. Pan­day ap­pealed and suc­ceed­ed af­ter it came to the court's at­ten­tion that pri­or to the sen­tenc­ing, Mc Nicolls had been in­volved in dis­cus­sions with At­tor­ney Gen­er­al, John Je­re­mie, over a land trans­ac­tion.

Pan­day com­plained there was the like­li­hood of ap­par­ent bias on the part of the Chief Mag­is­trate. The Court of Ap­peal or­dered a re­tri­al. Pan­day ap­pealed on this as­pect to the Privy Coun­cil which dis­missed his ap­peal and or­dered he face a sec­ond tri­al. The mat­ter was then put in the hands of Es­pinet, who al­ready was hear­ing an­oth­er mat­ter against Pan­day, with ba­si­cal­ly the same ev­i­dence.

Both the pros­e­cu­tion and de­fence plead­ed with Es­pinet to step down and not hear the re­tri­al, but the mag­is­trate re­fused, say­ing she will pro­ceed with it. Pan­day then filed for ju­di­cial re­view. Ap­pear­ing for Pan­day were Ravi Ra­j­coomar and Anand Be­har­ry­lal. Deputy So­lic­i­tor Gen­er­al, Neil Byam, rep­re­sent­ed Es­pinet, while Dou­glas Mendes SC and Ian Ben­jamin, ap­peared for the DPP. In her judg­ment, Jones said it was not in dis­pute that Es­pinet presided over com­mit­tal pro­ceed­ings and heard ev­i­dence up­on which she was re­quired to de­cide whether there was a pri­ma fa­cie case of cor­rup­tion and/or dis­hon­esty against Pan­day. The spe­cif­ic ev­i­dence, she added, led in the com­mit­tal pro­ceed­ings, showed there were de­posits of monies in­to a Natwest bank ac­count owned by Pan­day, which de­posits were sub­sumed in­to a large sum of mon­ey in the same ac­count. Jones said it was the same ev­i­dence which the pros­e­cu­tion in­tend­ed to lead in the re­tri­al. Jones said in the com­mit­tal pro­ceed­ings, the pros­e­cu­tion al­leged these de­posits of mon­ey were paid as a cor­rupt in­cen­tive to Pan­day with the in­ten­tion of procur­ing favourable con­tracts to build the Pi­ar­co In­ter­na­tion­al Air­port.

In the re­tri­al, Jones said the pros­e­cu­tion made the same al­le­ga­tion, say­ing that Pan­day failed to file the de­c­la­ra­tion that in­clud­ed ref­er­ence to the ac­count, and that fail­ure was in­dica­tive of an in­ten­tion to hide the ac­count. Pan­day, in his ju­di­cial re­view ap­pli­ca­tion, al­leged ap­par­ent bias. The Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), who was a par­ty, said that the fair-mind­ed and in­formed ob­serv­er, would not con­sid­er there was a re­al pos­si­bil­i­ty of bias be­cause the mag­is­trate was aware of the ev­i­dence prej­u­di­cial to Pan­day which may or may not be ad­mit­ted, or ad­mis­si­ble at the tri­al. The DPP sub­mit­ted the onus was on Pan­day to clear­ly es­tab­lish Es­pinet would hold fast to the views ex­pressed in the com­mit­tal pro­ceed­ings. Ac­cord­ing to Jones, the re­al ques­tion for de­ter­mi­na­tion was whether the dis­tinc­tion be­tween the find­ing of a pri­ma fa­cie case and the find­ing of guilt, would be ap­par­ent to, or ap­pre­ci­at­ed by the hy­po­thet­i­cal, fair-mind­ed and in­formed ob­serv­er. The judge did not agree.