THE full court yesterday reserved judgement on an application brought by Gorstew Ltd seeking leave for judicial review of a magistrate’s decision to acquit three former Appliance Traders Ltd (ATL) executives in the billion-dollar pension fraud case.

The court reserved its decision following arguments from attorneys for Gorstew Ltd and respondents Lorna Shelly-Williams — whose decision is being challenged — and former ATL execs Jeffrey Pyne, Patrick Lynch, and Catherine Barber.

The matter was heard by justices Lennox Campbell, Sarah Thompson-James and Crescencia Brown-Beckford.

If the application is successful and Shelly-Williams’ decision is quashed, Gorstew will move to commence fresh prosecution of the three.

Gorstew had obtained a fiat from the director of public prosecutions to prosecute the three.

The former ATL executives were charged for allegedly fraudulently distributing $1.7 billion of pension surplus without the consent of Gorstew Ltd. Shelly-Williams acquitted them when she upheld no-case submissions from their legal team.

Yesterday, attorney Bert Samuels and Sharon Usim, lawyers for the three former executives, argued against the court granting the application. Carlene Larmond, the director of litigation in the Attorney General’s Chambers, made her arguments for Shelly-Williams last week.

Hugh Wildman, the attorney for Gorstew Ltd, was clinical in his response to those arguments.

He submitted that never in his almost 30 years practising law had he seen accused being acquitted on no-case submissions in a case where there is an “admission and confession”.

He cited the case of Robert Hill in which the facts were far less than in the current case and noted that not even a no-case submission was attempted in the Hill case. The conviction was upheld in that conspiracy to defraud case.

The respondents in the current case had relied heavily on the Millicent Forbes case in arguing against the application for judicial review. However, Wildman noted that the respondents misconstrued the Forbes case. He pointed out that the Privy Council ruled in the Millicent Forbes case that judicial review cannot be obtained against a judge of the Supreme Court because it is not an inferior tribunal. He said the Forbes case had nothing to do with obtaining judicial review against a magistrate.

Lawyers for the respondents had argued that the constitutional rights of the accused would be breached if they are made to stand a second trial for the same offence, given the fact that they had been acquitted.

But Wildman cited a 2009 case from South Africa — The Director of Public Prosecutions v Kwazulu-Natal Regional Magistrate — which states that once the acquittal is found to be irregular or a nullity, then the accused can be retried before a new court without the question of double jeopardy arising.

He said that the South Africa case pooh-poohed the respondents’ submission on that point.

Gorstew Ltd, in its application, is seeking several declarations as they relate to the magistrate’s decision. Larmond had submitted that declarations could not be obtained in the judicial review court.

Responding to that point yesterday, Wildman argued that the case of Lattibeaudiere v Minister of Finance et al, in which Larmond also appeared as a leading attorney, established that declarations can be obtained through judicial review. Most of the reliefs in the Lattibeaudiere case were declarations.

At another stage, Wildman said it was unusual that Shelly-Williams did not give an affidavit in the current matter and yet Larmond, who is representing her, deferred the issue of the upholding of the no-case submissions to Samuels and Usim, who are representing the accused.

He said at another point that it is strange that Larmond said she was not equipped in the criminal law to respond to his submissions in relation to the magistrate’s finding about mens rea and that she was differing that as well to Samuels and Usim to deal with.