Businessman Steve Ferguson has brought yet another legal challenge over his continued prosecution for fraud and corruption charges related to the construction of the Piarco International Airport.
On Monday, Ferguson’s lawyers filed an application calling on the Court of Appeal to temporarily prevent the Office of the Director of Public Prosecutions (DPP) from filing indictments against him and his co-accused in the Piarco 2 case without redoing a preliminary inquiry into the allegations first.
In 2019, Ferguson and some of his co-accused challenged a move by the DPP’s Office to utilise Section 23(8)(c) of the Indictable Offences (Preliminary Enquiry) Amendment Act of 2005 to file the indictments directly in the High Court, after former senior magistrate Ejenny Espinet retired with the first inquiry still incomplete.
The lawsuit was upheld by High Court Judge Devindra Rampersad, who ruled that the inquiry would have to be redone afresh as it began before the legislation was passed by Parliament.
Last year, Ferguson filed another lawsuit over the ability of the DPP’s Office to use another section of the legislation (Section 23(8)(d)) to achieve the same goal.
In late May, Justice Rampersad, who was also assigned the second case, ruled that his previous decision did not apply, as the other segment of the legislation being considered by the DPP’s Office was not considered previously.
He also ruled that the move under the other section could not be precluded based on the same grounds as the first.
In the substantive appeal, Ferguson’s lawyers have raised three grounds on which they believe Justice Rampersad got it wrong in his second decision.
In his application for a stay pending the determination of the challenge over Justice Rampersad’s second ruling, Ferguson’s lawyers claimed if he was denied the relief, the filing of the indictments would pre-empt the outcome of the appeal.
“The indictments will set in train a sequence of events that will have a substantial impact on the Appellant’s life and the lives of the other Piarco 2 defendants and there is nothing that can be done to reverse the process,” they said in their court filings which were obtained by Guardian Media.
“The Appellant and all the other Piarco 2 defendants would have been sent to trial in the High Court on charges that they have been contesting in incomplete proceedings for nearly two decades,” they added.
They also suggested that the stay would not prejudice the DPP’s Office, as it could easily file the indictments in the event Ferguson loses the appeal.
“That conclusion is fortified by the amount of time that the Appellant has been contesting the Piarco 2 charges in the preliminary inquiry proceedings, and by the fact that the Appellant’s appeal is likely to be dealt with on an expedited basis,” they said.
Ferguson is being represented by Edward Fitzgerald, QC, Fyard Hosein, SC, Joseph Middleton, Annette Mamchan and Adam Hosein.
About the Piarco cases
The charges related to the Piarco Airport construction were brought following an investigation by Canadian forensic investigator Robert Lindquist.
In the first case, commonly referred to as Piarco 1, a group of government officials and businesspeople was charged with offences related to the alleged theft of $19 million.
The group included former finance minister Brian Kuei Tung; former national security minister Russell Huggins; former Nipdec chairman Edward Bayley (now deceased); Maritime General executives John Smith (now deceased), Steve Ferguson, and Barbara Gomes; Northern Construction chairman Ishwar Galbaransingh and financial director Amrith Maharaj; and Kuei Tung’s then-companion Renee Pierre.
Some of the group and other public officials were also slapped with separate charges over an alleged broader conspiracy to steal US$200 million in another case, commonly referred to as Piarco 2.
Foreign nationals Raul Gutierrez Jr, Ronald Birk and Eduardo Hillman-Waller were also charged as part of that case.
There were also two other smaller cases, referred to as Piarco 3 and 4.
Piarco 3 pertains to a £$25,000 bribe allegedly received by Panday and his wife Oma and allegedly paid by Galbaransingh and former government minister and Clico executive Carlos John, while Piarco 4 involves payments allegedly received by Pierre on Kuei Tung’s behalf.
The Piarco 2 and 3 cases were before former senior magistrate Ejenny Espinet and were not completed when she retired in 2018.
Both preliminary inquiries had to be either redone based on Justice Rampersad’s 2019 ruling or follow the process currently under challenge in Ferguson’s appeal.
The Piarco 3 case came up for hearing last week and lawyers representing Panday, his wife, John and Galbaransingh challenged the move to redo the case.
The Piarco 4 was completed in March 2020, with Pierre being committed to stand trial for three charges.
Late last month, the United Kingdom-based Privy Council upheld an appeal from some of the accused in the Piarco 1 case over the decision of former chief magistrate Sherman McNicolls to commit them to stand trial for the charges.
The Privy Council ruled that McNicolls should have upheld their application for him to recuse himself from the case, as he was “hopelessly compromised” based on a then-pending land deal with insurance company Clico and the involvement of former attorney general John Jeremie, SC, in helping him resolve it.
Following the outcome of the case, DPP Gaspard issued a press release in which he noted that the inquiry had to be either restarted, or the accused persons had to agree that indictments against them could be filed in the High Court without going through the preliminary inquiry process.
Gaspard noted that he would only make a decision on whether it should be restarted after considering public interest factors, including the age of the case, the costs incurred by the State thus far and the need to demonstrate the State’s commitment to prosecuting alleged acts of fraud on the citizenry.
He also suggested a joint trial of all the allegations arising out of the four Piarco cases would be desirable.
Recently, there has been public concern over the status of a multi-million civil asset forfeiture case being pursued by this country against some of the accused and companies in the United States.
Attorney General Reginald Armour, SC, and the country’s US lawyers were disqualified from continued participation in the case after a judge ruled that Armour allegedly downplayed his role in representing Kuei Tung in the local proceedings several years ago.
Armour has denied any wrongdoing.
The decision is currently being appealed, with former attorney general Faris Al-Rawi being appointed as the substitute client representative for this country.