Frederick Sukhdeo, who is accused of being the mastermind in the US$2M Sacred Heart Church insurance scam case, has filed a Constitutional Motion in the High Court seeking to prohibit criminal prosecution in the lower court.
Sukhdeo, through lawyers Sir Fenton Ramsahoye and Sanjeev Datadin, is contending that the proceedings are unlawful as they were restarted without legal authority or his knowledge and he is seeking a refund of forfeited bail as well as damages.
When the case was called before Magistrate Hazel Octave Hamilton on Tuesday, she indicated that the court was earlier provided with a copy of the motion, which seeks to stop her from proceeding with the matter.
Police Prosecutor Deputy Superintendent Fazil Karimbaksh said he had planned to continue but Magistrate Hamilton explained that because the matter is now engaging the attention of the High Court, she could not proceed. She later set March 14 for report or continuation, depending on the proceedings in the High Court.
Sukhdeo was present in court on Tuesday. Attorney-at-law, who substituted for Datadin, indicated to the court that they were still awaiting a date when the High Court matter will be heard.
According to the Notice of Motion, Sukhdeo is seeking from Attorney General (AG) Anil Nandlall, who is listed as the respondent, compensation and/or damages including vindicatory award in response to the proceeding being conducted in the Georgetown Magistrate’s Court; repayment of $75,000 “being bail money unlawfully forfeited by the magistrate in the said proceedings”; and an order prohibiting the magistrate from further prosecution and hearing of the criminal proceedings, “which the magistrate purported to resume without lawful authority following the unlawful continuance of the proceedings sine die at a magisterial hearing.”
He is also seeking declarations that the discontinuance of the hearing by a purported adjournment and/or postponement sine die and the purported resumption thereof without notice to the applicant (Sukhdeo) or at all was beyond the statutory powers vested in the magistrate upon the summary trial of two offences charged; that the continuance of the proceedings is unlawful for being conducted without jurisdiction; and that the state, represented by the AG, is liable to pay all sums awarded in these proceedings to the applicant in respect of the conduct of the magistrate.
Sukhdeo’s lawyers contend that he has been denied the protection and the benefit of the law. It was noted that the matter was set down sine die on November 18, 2008 “for the convenience of the prosecution which desired to call a witness living abroad….” thus leaving his client in indeterminate suspense with pending charges.
The Notice of Motion stated that Sukhdeo’s bail was forfeited by the magistrate without notice to anyone concerned, “thereby breaching the rules of natural justice by failing to give an opportunity to anyone to contest the proposed forfeiture.” It stated that his client only became aware of the resumption of the case via a Stabroek News article on January 30.
It was noted that the Summary Jurisdiction (Magistrates) Act and the Summary Jurisdiction (Procedure) Act, which regulate the proceedings, do not allow for a hearing to commence and be discontinued sine die. “Adjournments are allowed but to dates which are certain in accordance with Section 33 of the Summary Jurisdiction (Procedure) Act. The proceedings having been unlawfully discontinued sine die could not be reopened or recommenced at any date to which the proceedings had not been postponed and the magistrate had no power, jurisdiction or authority to re-open or re-commence proceedings with or without notice,” the document said.
The document went on to state that Sukhdeo, who is an economist and financial consultant, has suffered unfair treatment resulting in distress, inconvenience and loss of income estimated at $10,800,000 per annum locally and $7,200,000 per annum internationally because of his inability to work.
His medical condition, it was stated, was on a daily decline owing to the “stressful criminal proceedings in which only the interest of the prosecution and not the applicant’s interest, rights or freedoms have been given lawful consideration. The prosecution has manipulated the criminal justice system to delay the proceedings unlawfully”.
It stated too that the prosecution had avoided taking steps to prove its case without the presence of Gregory Yeadon, a Barbados-based loss adjuster, from whom a statement was never taken before his evidence was struck out by the magistrate.
Sukhdeo, in an affidavit in support of the motion, said that because of the stress of the proceedings he had spent approximately $3,600,000 on medical care and will be expecting to spend approximately $720,000 per annum.
While listing his qualifications, he said that at the time the charges were instituted he had experience as a lecturer at the University of Guyana and as a financial consultant for over 30 years. “The criminal justice system has been manipulated to my disadvantage by the facts and matter mentioned herein and in the grounds of my application and I wish to claim exemplary and/or aggravated damages and/or compensation on that account,” he said.
Sukhdeo was accused of being the mastermind behind the insurance scam after the Sacred Heart Roman Catholic Church was destroyed by fire on Christmas Day, 2004. It was alleged that on December 29, 2004, Sukhdeo, with intent to defraud, forged a document purporting to be a GuyFlag fire and perils claim for US$2 million ($400 million) for the church. Sukhdeo was also accused of trying to obtain the said sum of money by virtue of a forged fire and perils claim form.
According to the prosecution’s case, GuyFlag submitted a bogus claim for payment to its reinsurance agent AON Re and Sukhdeo, who was the head of the sister operation, the National Cooperative Credit Union Limited, was presented as a representative of the church dealing with the fire. It was Yeadon who allegedly brought the scam to light. Sukhdeo was arrested on November 17, 2005 and placed on $50,000 station bail.
Two lawyers, Nigel Hughes and Gino Persaud, had applied to the Director of Public Prosecutions to prosecute the case, without success.
Since the case began in 2006, there have been numerous delays.