Defence lawyers in the New Building Society (NBS) multimillion dollar fraud case yesterday argued against the start of a new preliminary inquiry (PI) given the absence of the complainant which has already seen one discharged.
Magistrate Nyasha Williams-Hatmin had discharged one of the four PIs earlier this year on the basis that there was not sufficient evidence to proceed. The virtual complainant in that matter had given her evidence in chief but failed to return to court to be cross-examined. The matter is now before Magistrate Fazil Azeez.
Yesterday, Attorney-at-law Anil Nandlall, who also spoke on behalf of the other lawyers in the case, said he has received reports that the complainant had migrated and will not return to testify. He submitted that without the witness, the court cannot proceed and it will make no sense to start a new matter if she cannot attend court to testify. He submitted that the prosecution cannot get a High Court committal in any of the cases if she does not appear.
Nandlall pointed out that the court has a duty to protect itself against abuse and stated that all of the defendants in the matter are being unfairly treated. He stated that they have been before the court for over two years; the three former managers have had their reputations damaged and their families are suffering since they cannot get jobs. He urged the court not to be manipulated and to put steps in place to ensure that his clients’ suffering does not continue. “I ask you again not to proceed on a path that would yield no results… In the other PI, we waited for her [the complainant] for nearly a year and she never turned up,” the lawyer stated.
Minutes before his submissions, the magistrate indicated to Mohanram Shahebudin, one of the accused, that he would be rearrested after the proceedings since his bailer was withdrawing the $1 million she had paid to secure his release from custody. Nandlall pointed out that the speedy resolution of these cases is a must for all the other defendants as he does not want to see this happen to them.
However, Special Prosecutor Hukumchand said he had spoken to Director of Public Prosecutions Shalimar Ali-Hack and she instructed that the PI proceed. He said he told her that when the complainant was needed she will be contacted. He pointed out that he had no personal contact with the complainant but he did have a witness who was ready to take the stand.
“The court has a duty to guard itself… You must be satisfied that she will return to this country or we will be forced to go to the High Court to stop these proceedings,” Nandlall said before submitting that the witness that the prosecution had would be giving irrelevant testimony.
The defence counsel said the witness will be giving evidence on the three occasions and will never mention any of the defendants. He recounted that the Magistrate Williams-Hatmin had recognised very early in the matter that it was going nowhere and spoke with the prosecutor.
“I wrote a whole notebook of irrelevant evidence,” he told the court and later told the magistrate he should consider what the magistrate said during those proceedings.
However, Magistrate Azeez said it was his duty to take evidence and if after some time the prosecution cannot proceed further, he will dismiss the matter. While admitting that he recognised the concerns being addressed, he said he is a new magistrate in the matter and on the last occasion he had given the prosecution some time to start. He said the prosecution has since indicated that there was a witness and he is prepared to take the evidence. “This is the nature of court proceedings and we have to take the evidence in a PI,” the magistrate stressed.
After being told that there are least seven witnesses remaining in the matter, the magistrate assured the defence lawyers that if the matter has to be dealt with every week to ensure there are no delays that will be done.
After about 15 minutes of arguments, Atma Rajaram, the internal audit manager at NBS, took the stand and testified about his work.
All the defendants in this PI were present in court yesterday and the matter has been adjourned to January 11 next year.
Initially, Director-Secretary Maurice Arjoon, assistant Mortgage Manager Kissoon Baldeo and Operations Manager Kent Vincent were charged with conspiracy to defraud the NBS of $69 million. In October 2007, shortly after the matter was brought before the court, Ali-Hack ordered that the charges be withdrawn against the trio and reinstituted together with charges against Ashley Legall, 59; Imran Bacchus; Amarita Prashad, 18; and Shahebudin.
The first charge alleges that on November 20, 2006 Legall, Bacchus and Shahebudin conspired with others to withdraw $20.5 million from the Savings and Prosper account in the name of Bibi Khan at NBS by way of two cheques.
The second reads that on November 1, 2006 Legall, Bacchus, Prashad and Shahebudin allegedly conspired with others to withdraw $15 million from Khan’s account in the form of two cheques in the name of M. Kryshundayal and Compton Chase respectively.
The third charge states that Bacchus, Legall, Shahebudin, Baldeo and Vincent on November 17 allegedly conspired to withdraw $22,664,000 from Khan’s account by using two cheques, one in the name of M. Hussein and the other, Compton Chase. And the fourth charge reads that on November 8, Arjoon, Vincent, Bacchus, Legall and Shahebudin conspired with others to withdraw $32,230,384 from Khan’s account using two cheques.
Shortly after the reinstitution of the charges, lawyers for the managers filed a motion in the High Court before Justice Jainarayan Singh Jr, asking that the court prohibit the DPP, the Commissioner of Police or any of his servants from reinstituting any new charges against them.
The High Court matter, which was brought by Arjoon, Vincent and Baldeo had earlier delayed the progression of the PI, it was subsequently withdrawn.
