Privy Council dismisses appeal of PNP five in Trafigura caseMonday, April 19, 2021
The Judicial Committee of the United Kingdom Privy Council has dismissed the appeal of five members of the Opposition People's National Party (PNP) in the Trafigura case.
The judgment issued this morning in London means that former PNP President Portia Simpson Miller, as well as Phillip Paulwell, Robert Pickersgill, Colin Campbell, and Norton Hinds must testify in open court about a $31-million donation by Trafigura Baheer to the then-governing PNP in 2006.
The matter was taken to the Privy Council after the Court of Appeal, in 2017, dismissed an appeal against a Supreme Court ruling that the five appellants must testify in open court about the Trafigura donation.
The money was deposited into an account named CCOC, which turned out to be the acronym for 'Colin Campbell Our Candidate' to which certain members of the PNP were signatories.
The money was transferred to the account just prior to the PNP's annual conference that year.
At the time the PNP said the money was a donation, but Trafigura said it was payment on a commercial transaction. The party later reported that the money was returned.
The Government of The Netherlands want to question the five appellants about the payment made to the PNP, which was the governing party at the time, while Trafigura had an oil-lifting agreement with Jamaica.
The National Public Prosecutor's Office (NPPO) of The Netherlands is investigating alleged breaches of the Dutch Criminal Code by Trafigura Beheer BV for the potential bribery of public officials of Jamaica. Between December 2007 and May 2009, the NPPO wrote various letters to the Director of Public Prosecutions, which is the designated Central Authority under the Mutual Assistance (Criminal Matters) Act 1995, requesting assistance in the form of taking evidence from the appellants on oath or affirmation.
But the appellants have insisted that they have no information that can assist the Dutch investigation.
At the 2017 appeal hearing, Assistant Director of Public Prosecution Andrea Martin-Swaby had reiterated that the common law rule dictates that all court proceedings should be held in open court, except in certain circumstances, and that the open court justice is enshrined in Jamaica's Constitution.
However, defence lawyers for the five had argued that the judge erred in his ruling. They also argued that the individuals cannot be compelled to cooperate with requesting foreign states, that the treaties have to be subjected to Jamaican laws that they already indicated they know nothing about alleged bribery in respect to Trafigura, and cannot help the Dutch authorities any further.
But the Court of Appeal, in dismissing the appeal, ruled that the proceedings brought under the Mutual Assistance Criminal Matters Act are subject to the principles of open justice as mentioned in Section 16 (3) of the constitution, and that the ruling of the judge that these proceedings should be conducted in open court is correct in law.
In its ruling this morning, the Privy Council said: “The nature of the matter under investigation is one which is capable of affecting the polity of the country. This is highly relevant to whether the evidence should be taken in public and was not a matter given undue weight.
“There was no material before the court to lead to the conclusion that a public hearing might jeopardise the investigation in The Netherlands, or any subsequent investigation or proceedings which might follow in Jamaica. In any event, should such an investigation or proceedings ensue, that would be a question to be addressed within those proceedings.
“It should also be recalled that the appellants were given the opportunity to give their evidence in private but did not avail themselves of that opportunity, thus leading to the request made in the ninth] supplementary letter. We see no basis for concluding that the discretion was other than properly exercised.”
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