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DPP throws out Christie's recommendation to charge Tufton, Hill, Stanberry

Wednesday, September 29, 2010

CONTRACTOR General Greg Christie was left with egg on his face yesterday after Director of Public Prosecutions (DPP) Paula Llewellyn dismissed his recommendation that she file criminal charges against Agriculture Minister Dr Christopher Tufton, his permanent secretary Donovan Stanberry, and former banker Aubyn Hill, all of whom he had accused of committing perjury.

In fact, in her findings on Christie's recommendations, Llewellyn said her office "would be severely embarrassed" to convince a criminal court that the three men were guilty of wilfully misleading the contractor general's probe of a multi-million dollar consultancy contract awarded to Hill and/or his company by the Government.

"As a matter of common sense and criminal practice and procedure a prosecutor does not embark on a case where it is clear from the beginning that one cannot overcome a no case submission," the DPP said in her findings.

"It is my considered view that the prosecution would face an insurmountable hurdle in proving the requisite mens rea (mental element) beyond a reasonable doubt," Llewellyn added as she gave reasons for her decision.

She also ruled out referring the matter to the police, saying that the material submitted was not sufficient to mount a viable prosecution because of the absence of the requisite mental element.

Christie had opened a probe into the contract in October 2009 after it was reported that Hill — the lead man in the negotiations to divest state sugar assets — was being paid $1.9 million monthly for consultancy services.

In his report of his investigation, Christie had charged that Hill, Tufton and Stanberry had been wilfully misleading as to the terms of Hill's employment.

Christie contended that the three had "provided the OCG (Office of the Contractor General) with statements which were manifestly and materially false" and in contravention of Section 29 (a) of the Contractor General Act and Section 8 of the Perjury Act. He also copied his report to the DPP, he said, "for such further action as she may deem to be appropriate".

Christie had based his accusation on a response Stanberry gave about the nature of Hill's contract.

Stanberry had first described Hill's contract as an employment contract. However, the copies of the contract Stanberry provided to the OCG made reference to Hill being a consultant. But Stanberry later admitted that he made an error.

"I did, in fact, characterise Mr Hill's contract as an employment contract," said Stanberry in his correspondence to Christie. "This was a mistake on my part, as in my mind the nature of Mr Hill's assignment was consistent with the role of a contract employee of the ministry. In actuality, however, Mr Hill's contract was formatted as a contract for a consultant, providing short-term consultancy service, as against an employment contract in the classic sense. This was a genuine mistake on my part and I, therefore, withdraw all reference to 'Employment Contract' in my previous letter of November 19, 2009, to be substituted with 'Contract for Short Term Consultancy Services'."

However, Christie said that the documentary evidence and the subsequent sworn statements which were provided to him by the three men "comprehensively and unequivocally contradicted the initial responses to the OCG's requisitions".

Christie said it was for this reason, as well as having regard to the numerous other considerations which are outlined in the findings of his report that led him to the conclusion that all three men acted in contravention of the acts.

But in a response to Christie, the Ministry of Agriculture pointed to the fact that it was the ministry that provided the documents that highlighted the error, therefore the seeming contradiction "was not something that the contractor general had to discover by coercion or by subsequent requisition because the ministry deliberately withheld the information".

The accusation of perjury pushed Minister Tufton to retain veteran attorney Frank Phipps who wrote to the DPP seeking a swift conclusion to the matter.

Yesterday, Llewellyn said the fact that the contracts clearly outlining Hill's status were attached by the three men in their response to the OCG tended "as a matter of law to undermine any assertion that there was any intention to deliberately or recklessly mislead the contractor general".

She also pointed to Tufton's and Stanberry's acknowledgement to the OCG that they had made an error in their responses to Christie.

Although Llewellyn noted that there might have been breaches of the Public Sector Procurement Regulations in relation to Hill's contract, she declined to refer Stanberry to the authorities for prosecution.

"On the face of it, though this section may appear to have been contravened in relation to the contract dated March 30, 2009, I decline to refer this matter to the police authorities with a view to the possible prosecution of Mr Donovan Stanberry," said Llewellyn.

It has been held by the Privy Council... that where the decision not to prosecute is based on an assessment of the evidence and the prospects of securing a conviction, the courts will still accord great weight to the judgement of experienced prosecutors on whether a jury is likely to convict," she said.

"In the totality of the circumstances I do not believe that the material would support a viable prosecution and as such I would decline to refer this aspect of the matter to the police. However, I would recommend that a thorough departmental review be taken of the systems in place to avoid any breach of the procurement regulations," the DPP said further.

At the same time, Llewellyn commended the OCG "for the thoroughness and attention to detail in the investigation and preparation of their report".

Reacting to the DPP's findings, the Ministry of Agriculture yesterday expressed relief "at the exoneration" of Dr Tufton and Stanberry.

"Both the minister and the permanent secretary were always convinced that the charges would not have been proffered by the director of public prosecutions because of the pureness of their intent, and their conviction that it was in fact the intent of Cabinet for Mr Hill to be awarded employment contracts, based on the nature of the assignment Mr Hill was called upon to undertake," the ministry said in a statement.

The ministry said that both Tufton and Stanberry "suffered untold anguish due to the assault on their reputations" and urged a review of the legislation governing the operations of the OCG "to allow for a greater level of interaction between public servants and the Contractor General before cases are referred to the DPP and disseminated to the media".

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