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Prosecution rubbishes ‘inaccuracies and innuendoes’ in ATL Pension Fund case

Thursday, June 12, 2014    

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PROSECUTION lawyers in the recently concluded ATL Pension Fund case have rejected what they described as "several serious inaccuracies and innuendos" fed to the public through the news media, "with the clear aim of misleading the populace".

In a statement, a week after the trial ended with the acquittal of three former Appliance Traders Limited executives who were charged with fraud in the unauthorised distribution of $1.7 billion of pension fund surplus, the prosecutors said statements by defence lawyers had also maligned the good name of Gordon 'Butch' Stewart, chairman of Gorstew Limited, the corporate entity which was the complainant in the case.

The prosecutors, Queen's Counsel RNA Henriques, Garth McBean and Hugh Wildman, also disagreed but accepted the court's decision that the accused — Patrick Lynch, former chairman of the ATL Pension Fund; Catherine Barber, former general manager of the fund; and Dr Jeffery Pyne, former managing director of Gorstew — had no case to answer due to insufficient evidence of dishonesty against them.

Following is the full text of their statement:

In the immediate aftermath of the ruling in the Appliance Traders Limited (ATL) pension fund trial on June 3, 2014, several serious inaccuracies and innuendos have been fed to the public through the news media, with the clear aim of misleading the populace and maligning the good name of the chairman of Gorstew Limited which was the complainant.

Without discussing the merits of the case here, we wish to state at the outset that we respect the Court's decision, even though we do not agree with it.

Nevertheless, it is critical, in the interest of truth, that these inaccuracies not be allowed to remain unanswered and so we offer the following points of clarification:

1. It has been the established practice for decades that where charges are brought by the police in which companies or private individuals have an interest, the prosecution is supported by the application for a fiat for private attorneys to be actively associated with the Clerk of the Courts or Crown Counsel in the prosecution of the case. In the ATL Pension trial, the Clerk of the Courts was actively involved in leading evidence and responding to legal submissions.

2. In Jamaica's criminal justice system, the police have a legal right to investigate, arrest and bring charges without a ruling or intervention from the Director of Public Prosecutions, unless this intervention is expressly sought, which it was not.

3. Before granting an Order for indictment under the Judicature (Resident Magistrate's) Act, the Resident Magistrate is required in every indictable offence to be satisfied that there is sufficient evidence to ground the offence and that the offence is one within his or her jurisdiction. In this case, comprehensive submissions were made by both the prosecution and the defence, following which the Magistrate granted the order for indictment without hesitation.

4. The Fraud Squad is a part of the Organised Crime Investigation Division of which SSP Fitz Bailey was in charge. It is, therefore, misleading and mischievous to say that the Fraud Squad was bypassed.

5. It is also mischievous to say that the local expert was bypassed in favour of an overseas forensic document analyst. An American expert was engaged by Gorstew prior to the formal report to SSP Bailey in January 2011. Furthermore, the evidence in Court reveals that the particular expertise is not available in Jamaica. Note, however, that a local handwriting expert, Superintendent William Smiley (a member of the JCF) gave evidence in relation to the handwriting of one of the accused.

6. At no point did the prosecution allege that any of the accused had defrauded the company of monies or was in receipt of funds, as was erroneously stated to the media. The application for the amendment to the indictment which was granted by the Magistrate was to clarify this misunderstanding.

7. The complainant in the case is a corporate body, Gorstew Limited, and not Gordon 'Butch' Stewart in his personal capacity. The Magistrate refused an application for Mr Stewart to be called as a witness. The description in the media of Mr Stewart as "evil" by a senior attorney is a clear defamation of his character.

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