Fran­cis Joseph

?FRAN­CIS JOSEPH

The Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) has de­cid­ed to drop four of the six dis­ci­pli­nary charges laid against Chief Mag­is­trate Sher­man Mc Nicolls.

On the eve of the Privy Coun­cil ap­peal, the JLSC, in its writ­ten sub­mis­sions, has de­cid­ed not to pur­sue the four charges and will abide by the de­ci­sions of the Trinidad courts in quash­ing those charges.

But the ap­peal goes on, with Mc Nicolls seek­ing to have two oth­er charges, quashed. That ap­peal is list­ed be­fore five Law Lords on No­vem­ber 9 in Lon­don.

Mc Nicolls will be rep­re­sent­ed at the ap­peal by British Queen's Coun­sel Michael Beloff, Ian Ben­jamin, Annabelle Sook­lal and Tris­tan Jones. British QC Pe­ter Knox, in­struct­ed by John Almei­da, will ap­pear for the JLSC.

The JLSC laid six charges against Mc Nicolls, over his fail­ure to give ev­i­dence for the pros­e­cu­tion against then Chief Jus­tice Sat Shar­ma, on a charge of con­spir­a­cy to per­vert the course of pub­lic jus­tice.

Mc Nicolls, who has been Chief Mag­is­trate for the past ten years, was the State's main wit­ness against Shar­ma.

But on March 5, 2007, Mc Nicolls went in­to the wit­ness box at the pre­lim­i­nary in­quiry be­fore Mag­is­trate Lianne Lee Kim and said he was not pre­pared to give ev­i­dence in the mat­ter. As a re­sult, the case col­lapsed and Shar­ma was ex­on­er­at­ed.

The JLSC con­duct­ed an in­ves­ti­ga­tion in­to the mat­ter, and Jus­tice Se­bastien Ven­tour rec­om­mend­ed that the Chief Mag­is­trate be charged. The JLSC filed six dis­ci­pli­nary charges against Mc Nicolls, aris­ing out of his con­duct at the pre­lim­i­nary in­quiry.

But, Mc Nicolls head­ed to the High Court, chal­leng­ing the de­ci­sion of the JLSC to charge him.

On Feb­ru­ary 7, 2008, Jus­tice Pe­ter Ja­madar quashed four of the six charges brought by the JLSC, but ruled that two of the charges be heard. Mc Nicolls ap­pealed, and the JLSC, cross-ap­pealed.

On Ju­ly 25, 2009, the Court of Ap­peal agreed with Ja­madar and or­dered that Mc Nicolls face just two charges. Mc Nicolls ap­pealed to the Privy Coun­cil, while the JLSC cross-ap­pealed, say­ing that it would like the four oth­er charges re­in­stat­ed.

Mc Nicolls has filed four grounds in the Court of Ap­peal:

1) The de­ci­sion to place him on two charges was ul­tra vires, be­cause the al­le­ga­tion in­ves­ti­gat­ed by Ven­tour was not the same as the al­le­ga­tion which forms the sub­ject mat­ter of the two charges;

2) It was un­fair, giv­en the dam­age to his rep­u­ta­tion re­sult­ing from press leaks and com­ments in the two months oc­cur­ring be­fore the charges were laid, to bring the two charges with­out giv­ing him an op­por­tu­ni­ty to say why it would not be ap­pro­pri­ate to bring them;

3) The charges are not sus­tain­able in law, be­cause the al­le­ga­tion that he told Pe­ter­son he was not pre­pared to tes­ti­fy, did not re­sult in the dis­con­tin­u­ance of the pro­ceed­ings against Shar­ma;

4) Fair­ness de­mands that the charges be dropped, be­cause he had to dis­close his de­fence to the Mustill in­quiry.

?THE CHARGES

?The charges against Mc Nicolls al­lege that he brought the ju­di­cia­ry and the JLSC in­to dis­re­pute by in­form­ing Gilbert Pe­ter­son, SC, the lead pros­e­cu­tor in the Shar­ma case and Car­la Brown-An­toine, then Deputy Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP), that he was "not pre­pared to tes­ti­fy fur­ther" in the in­quiry. The dates of Mc Nicolls' al­leged mis­con­duct are Feb­ru­ary 27, March 1 and March 5, the dates on which he sig­nalled his un­will­ing­ness to Brown-An­toine and Pe­ter­son, and on which the Shar­ma case col­lapsed.