ODPP sets about resumption of Trafigura case after privy council rulingTuesday, April 20, 2021
The Office of the Director of Public Prosecutions (ODPP) yesterday advised the authorities in The Netherlands of the United Kingdom Privy Council's dismissal of an appeal by former officers and members of the People's National Party (PNP) in the protracted Trafigura case and will today write to the Supreme Court to make preparations for the matter to proceed in keeping with the office's responsibility as the designated Central Authority under the Mutual Assistance (Criminal Matters) Act (MACMA).
“In any request from any State, if we have court proceedings it's a normal protocol that we will advise the requesting State — give them an update on the status of the matter from time to time, if there was any change in circumstances,” Director of Public Prosecutions (DPP) Paula Llewellyn told the Jamaica Observer yesterday.
“As the designated authority we have a responsibility, as far as the law allows, to discharge our obligation in respect of that request, so we would proceed, unless we were to get something from them saying no,” Llewellyn added.
She said today's communication to the registrar of the Supreme Court will constitute a request for a judge and court reporter to be made available, as well as for a date to be set, given the exigencies of the court calendar, and for a summons to be issued to the appellants once a date is decided on.
The Privy Council ruling issued yesterday morning 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 National Public Prosecutor's Office (NPPO) of The Netherlands wants to question the five appellants about the payment which was made while Trafigura had an oil-lifting agreement with Jamaica.
Between December 2007 and May 2009, the NPPO wrote various letters to the DPP, requesting assistance in the form of taking evidence from the appellants on oath or affirmation.
But the appellants had insisted that they have no information that can assist the Dutch investigation and argued that the taking of their evidence in open court would contravene their rights under the constitution, on the basis that section 16(3) of the constitution, which requires “proceedings” to be in open court, did not apply to the taking of evidence under MACMA.
At the 2017 appeal hearing, Assistant Director of Public Prosecutions 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 who had refused their application 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 MACMA 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 yesterday, 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.”
After the judgment was handed down, current PNP President Mark Golding said he welcomed the opportunity for the information to be provided, and for the matter to be disposed of once and for all.
“The events concerned took place in 2006, which is 15 years ago, and the delay in completing this mutual legal assistance process has dragged the matter out for far too long,” Golding said.
He said that Trafigura, which made the political donation, is under investigation in The Netherlands for an alleged breach of Dutch law. “No offence is alleged under Jamaican law, and no one in the PNP is under investigation,” he added.
“The information requested by the Dutch authorities should now be provided without delay. Let the truth come out, and let the chips fall where they may,” Golding urged, adding that “corruption will not be tolerated within the PNP under my leadership”.
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