Appeal Court rejects bid to challenge trial order

Derek Achong

Se­nior Re­porter

[email protected]

The Court of Ap­peal does not have the ju­ris­dic­tion to con­sid­er ap­peals chal­leng­ing de­ci­sions of High Court Mas­ters to di­rect that per­sons ac­cused of se­ri­ous crim­i­nal of­fences face tri­al af­ter as­sess­ing the suf­fi­cien­cy of the ev­i­dence against them.

De­liv­er­ing a judg­ment last Fri­day, Ap­pel­late Judges Mark Mo­hammed, Maria Wil­son and Ge­of­frey Hen­der­son dis­missed an ap­peal, brought by a for­mer Wa­ter and Sew­er­age Au­thor­i­ty (WASA) ex­ec­u­tive and a di­rec­tor of a con­struc­tion com­pa­ny ac­cused of cor­rup­tion.

In Ju­ly 2018, Wen­dell Di­az, the for­mer head of pro­cure­ment and lo­gis­tics at WASA and Michael Ar­june, di­rec­tor of Kall Co Ltd were charged.

Di­az was charged with cor­rupt­ly ac­cept­ing a $30,000 bribe from Ar­june as a re­ward for in­flu­enc­ing the award of WASA con­tracts to the com­pa­ny.

Ar­june was charged for pay­ing the bribe in De­cem­ber 2013.

The duo’s case fell un­der the Ad­min­is­tra­tion of Jus­tice (In­dictable Pro­ceed­ings) Act (AJI­PA), which re­placed pro­tract­ed pre­lim­i­nary in­quiries be­fore mag­is­trates with quick­er suf­fi­cien­cy hear­ings be­fore High Court Mas­ters.

Dur­ing their suf­fi­cien­cy hear­ing, the duo’s lawyers claimed that there was un­sat­is­fac­to­ry recog­ni­tion ev­i­dence link­ing them to the crime as the po­lice failed to con­duct an iden­ti­fi­ca­tion pa­rade be­fore charg­ing them.

In Jan­u­ary last year, the Mas­ter dis­missed their chal­lenge and found that there was suf­fi­cient ev­i­dence for them to face a tri­al be­fore a Judge and ju­ry or Judge-alone.

They filed the ap­peal ques­tion­ing the Mas­ter’s de­ci­sion but the Ap­peal Court de­cid­ed to con­sid­er whether it could en­ter­tain the chal­lenge be­fore de­ter­min­ing the mer­its of the duo’s com­plaints.

Jus­tice Mo­hammed, who wrote the pan­el’s de­ci­sion, not­ed that be­fore AJI­PA was pro­claimed in De­cem­ber 2023, ac­cused per­sons who were com­mit­ted to stand tri­al by mag­is­trates were not per­mit­ted to ap­peal.

He not­ed that the AJI­PA main­tained the po­si­tion.

“Ul­ti­mate­ly, the rights of an ac­cused are not di­min­ished by dint of the fact that the ac­cused has his­tor­i­cal­ly not had and con­tin­ues not to have a right of ap­peal to the Court of Ap­peal with re­spect to an or­der di­rect­ing that he be placed on tri­al,” Jus­tice Mo­hammed said.

“There is no iden­ti­fi­able im­bal­ance which is in­im­i­cal to the rights of an ac­cused,” he added.

Jus­tice Mo­hammed not­ed that tri­al judges were ca­pa­ble of de­ter­min­ing is­sues re­gard­ing the suf­fi­cien­cy of ev­i­dence and their de­ci­sions on such could be ap­pealed.

Jus­tice Mo­hammed and his col­leagues were al­so asked to de­ter­mine the pow­er of judges to quash in­dict­ments when re­ferred by Mas­ters.

“In our view, there is no pow­er to quash an in­dict­ment based on the in­suf­fi­cien­cy of the ev­i­dence,” Jus­tice Mo­hammed said.

“To do so would in­ter­fere with the tri­al process through a pre­ma­ture and whol­ly il­le­git­i­mate as­sess­ment of the ev­i­dence by a tri­al judge,” he added.

The duo was rep­re­sent­ed by Ul­ric Sker­ritt and Jagdeo Singh, while Sab­ri­na Dougdeen-Jaglal and Giselle Fer­gu­son-Heller rep­re­sent­ed the State.