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Round three to prosecution; big blow to defence in ATL trial

BY PAUL HENRY Crime/Court co-ordinator henryp@jamaicaobserver.com

Friday, March 14, 2014    

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THE court yesterday dealt a blow to the defence in the Appliance Traders Limited (ATL) pension fraud trial, tossing out its bid to block a witness statement from being entered into evidence as the year-long case winds down.

Senior Magistrate Lorna Shelly-Williams ruled in favour of the prosecution application to have the statement of Kenneth Lewis, secretary of Gorstew Limited, entered into evidence under the Evidence Amendment Act due to his ill-health.

In making her order, RM Shelly-Williams said she didn't agree with the defence that it would be unfair to the defence for Lewis' statement to be entered into evidence.

It was the third of three major rulings by the magistrate in the trial that have gone against the defence led by KD Knight, Frank Phipps and Deborah Martin.

As a result of the ruling, attorneys for both the defence and prosecution have agreed that documents constituting correspondence between Lewis and the three accused persons concerning the contested surplus distributions be entered into evidence as well.

This exercise is to commence on March 24, 2014 when the prosecution will officially close its case. At that time a date will be set for the start of no-case submissions.

Catherine Barber, the former general manager of the scheme; Jeffrey Pyne, former managing director of Gorstew Ltd, the holding company for Gordon 'Butch' Stewart's group of companies; and Patrick Lynch, the former chairman of the pension fund, are alleged to have conspired in the forging of the four letters to deceive that consent was given for the distribution of $1.7 billion in pension fund surplus.

The prosecution maintains that the letters, which were presented to Stewart by Barber, were backdated to 1998, 2002, 2005, and 2008. Pyne, who signed the letters, had left the company seven months before December 15, 2010 when the alleged forgery was discovered.

Yesterday, David Davies, the ATL/Sandals global financial controller, was recalled to the witness stand to undergo further cross-examination from Frank Phipps due to the fact that Stewart hasn't given evidence in the matter.

At one point, Phipps asked Davies if there was discussion at a meeting of trustees surrounding the distribution of $351 million in surplus in one of the years, but the witness said "consent or lack thereof" was the fundamental concern for him and was at the heart discussions.

Asked by Phipps if the Financial Services Commission had asked for the management of the pension fund to set out, in writing, a process by which consent is to be sought from founder Gorstew, Davies said 'yes' and added that it was done in December 2012.

He said it reflected poorly on the former chairman of the fund that such a procedure hadn't been set out previously.

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