Gaspard insists on private CLICO enquiry in second letter to commissioner
By Darren Bahaw News Editor
DIRECTOR of Public Prosecutions (DPP) Roger Gaspard has written to the chairman of the Commission of Enquiry investigating the collapse of CL Financial Ltd, three of its subsidiaries and the Hindu Credit Union calling on him to reconsider his decision to continue the enquiry in public.
Gaspard's six-page letter sent to Sir Anthony Colman yesterday, a copy of which was obtained by the Express, maintained that the public enquiry had the potential to jeopardise "a potentially strong and credible prosecution" of former CL Financial business executives on the basis of adverse pre-trial publicity.
The DPP's letter was in response to Colman's refusal to accede to a request to conduct the "potentially damaging" aspects of the enquiry in private and the "grave inaction" of Attorney General Anand Ramlogan to advise President George Maxwell Richards to suspend the enquiry or at least vary the terms of reference of the enquiry.
Both Colman and Ramlogan have insisted it was contrary to the public's interest to conduct the enquiry in private.
Gaspard wants Colman to state the reasons why the public interest would be better served in continuing the enquiry in public "rather than avoiding the likelihood of a potentially credible prosecution being stayed on the ground that (the) defendants had been prejudiced by publicity caused by your enquiry".
The letter requested Colman not to make any adverse findings against any person or entity as having committed a criminal offence; make any findings, observations or recommendations as to whether there are any grounds for criminal proceedings against any person or entity; whether criminal proceedings should therefore be recommended to the Director of Public Prosecutions for his consideration; issue any Salmon letters (correspondence to any entity or person outlining potential wrongdoing and calling on them to respond); compel any person to give evidence who has indicated an intention to exercise his or her privilege against self-incrimination.
He also requested that Colman refrain from accepting any evidence which may be the subject of the criminal investigation whether or not it is in the public domain or receive any evidence pertaining to the culpability of any persons or entity leading to the collapse of the financial institutions.
Gaspard made public the police investigation against former CL Financial business executives on November 8, warning the media to refrain from publishing any information which could jeopardise the investigation.
By then, a hand-picked team of police officers comprising specialist white-collar crime investigators from the Anti-Corruption Investigations Bureau, Fraud Squad and other agencies had already begun their probe a week earlier, on the basis of a forensic report submitted by the Central Bank into CL Financial.
His warning to the media, he said, came after repeated attempts to convince the Attorney General to preserve the integrity of the police investigation.
In his letter to Colman, Gaspard said that on September 10, he wrote to Ramlogan informing him that there should be a full criminal investigation into the collapse of CL Financial and its related companies. A summary of the allegations to be investigated by the police was attached to the letter.
Ramlogan responded on October 5, giving his commitment to provide all the necessary support for a criminal investigation. He wrote again on November 8, setting out in detail the reasons why he considered the continuation of the enquiry wrong.
By October 19, Gaspard again wrote to Ramlogan expressing his concern about the impact of the enquiry on any criminal investigation, and requested the Attorney General to advise President George Maxwell Richards to suspend the enquiry, or at least vary the terms of reference so that it will not impact on the integrity of the police investigation.
Gaspard said he requested Ramlogan treat the matter with urgency given that the enquiry was scheduled to resume on October 22.
"Unfortunately, I did not hear from the Hon Attorney General before your enquiry resumed on the 22nd of October 2012," Gaspard stated.
He said he again wrote to Ramlogan on November 1, informing him the police investigation was now active and repeated his concerns about the impact which the continuation of the enquiry was likely to have on the criminal investigation and requested that he (AG) bring those concerns to the attention of Colman by November 5, or he (DPP) will be duty bound to take up the matter directly with Colman.
Gaspard, in his letter, said he had cautioned the Attorney General that his failure to advise the President to at least vary the terms of reference "may lead one to conclude that he (DPP) was abdicating his duty to preserve the integrity of the administration of criminal justice in this case".
Ramlogan's response on October 19, however, was that there was a greater public interest in the enquiry continuing rather than preserving the credibility and integrity of the criminal investigation and the prosecution of those who may be responsible for any criminal wrongdoing, a position adopted by Colman, in a letter sent to Gaspard on November 21.
The Attorney General declined to advise the president to suspend the enquiry or even consider the request to vary the terms of reference, Gaspard stated, noting that no reference was made to the fact that the police investigation had already begun.
Colman's letter was issued by the Office of the Prime Minister, the following day to the media, and Gaspard stated such a situation was noted "with extreme concern" and a "most extraordinary development given the independent mandate" of the Commission.
Given his expressed concerns, Gaspard noted he was confident the Attorney General would have advised Colman to preserve the integrity of the police investigation by halting or amending the continuation of the enquiry.
"My confidence appears to have been misplaced," Gaspard noted.
In the same letter to Colman, Gaspard also noted it was his intention to direct a full-scale investigation into the collapse of the Hindu Credit Union, which is also being investigated by Colman.
The enquiry is set to resume public hearing on December 3, and Gaspard stated if his suggestions to Colman do not find favour, he wants an audience before any further evidence is heard.
Gaspard gives his reasons
• The likelihood that the Commission will not conclude for at least another year.
• The report by the Commissioner, at best, could only recommend a prosecution.
• There will still need to be a criminal investigation as the quality of the evidence before the Commission is unlikely to meet the threshold required for a criminal prosecution.
• The continuation of the enquiry can only serve to delay a prosecution and jeopardise the police investigation. The relevant evidence (including documents) of all witnesses who have already appeared before you will need to be re-taken in a properly admissible form for any credible prosecution to be mounted.
• Other substantial evidence not before the enquiry will be required, for example foreign witnesses.
• There would be a greater sense of outrage if the continuation of the enquiry were to result in a potentially strong and credible prosecution being stayed as an abuse of process than there would be if the enquiry into any criminal conduct were adjourned until the conclusion of the criminal investigation and proceedings.
• The substance of the criminal allegations that are being investigated has already being determined. There is no good reason why the Commission should be concerned with the making of recommendation on what is already known.
• The continuation of the Commission and the publicity surrounding it and any subsequent report may well ground an application to stay any subsequent trial as an abuse of process.
• It would be impossible for the enquiry to continue without examining who did what to whom without prejudicing the police investigation any subsequent criminal proceedings.
• The duty of the DPP to the public to take steps to ensure due process by preventing prejudice, whether by way of pre-trial publicity or otherwise, and whether or not any potential defendant were to take that point.
• The duty to guard against a defendant exploiting pre-trial publicity with a view of derailing a subsequent trial.
• Pre-trial publicity cannot only prejudice criminal proceedings but also the antecedent criminal investigation.
• Potential defendants may suffer prejudice merely by having to claim that privilege against self-incrimination or by having to answer questions which are incriminating.
