‘Liability on Solicitor General, AG’s offices in missing file scandal’

Government sources have placed responsibility and liability for the missing malicious prosecution file for the former defendants of the Vindra Naipaul-Coolman case squarely with the Office of the Solicitor General Carol Hernandez.

“The Solicitor General’s Department is capable of those things. All the emails have been secured. All the paper trails have been secured, and the liability is going to rest squarely in the state department, not with the Attorney General (at the time) because the systems to track it were all put in place.

“They were served. They lost ‘the file.’ They had several bites of the cherry because they got served a notice of application in default of judgment. They did not seek to set it aside,” a government source told the Sunday Guardian.

“They did not ask for a copy of the file. They did not ask the Attorney General for any instruction. They emailed each other 100 times, but they did not tell the AG anything. They didn’t tell the Secretariat anything. They went to court and participated in the application to assess damages. They are going to have to answer to what went on.”

But several well-known attorneys said that the Solicitor General’s office and the Attorney General’s office are under one umbrella and therefore there should be collective responsibility.

According to attorney Martin George, “It is not possible to disaggregate oneself to say maybe it’s the Solicitor General’s Office that is at fault.”

The lawyers have also found Attorney General Reginald Armour’s claims at a press conference last week to be ‘puzzling’, leaving more questions than answers.

Armour said after the case was filed in late May 2020, it was served on the Solicitor General’s Office a month later. He said the voluminous file was received by a ministry employee and a file was opened for the case to be assigned to a State attorney. “After this, the file disappeared,” Armour said.

The AG claimed the AG’s Secretariat, which was established by his predecessor and current Rural Development and Local Government Minister Faris Al-Rawi to manage the work of the ministry, was not informed of the case as required and only learned of it after reports of the compensation ordered for the men by High Court Master Martha Alexander on Monday.

The attorneys all found it strange, and difficult to believe, that the State’s counsel made an appearance in the civil matter on behalf of the Office of the Attorney General without the file and that the State did not notify the Master of the court during the matter that a file was missing.

According to the attorneys, given the court system has so many checks and balances, it is difficult to understand how the AG’s Office would not have been notified to file a defence.

Armour’s statements, they felt, really have not quelled the public’s concerns.

“It has not done anything to lessen the suspicions that there was a major dropping of the ball here by the Office of the Attorney General and I think that’s the inescapable conclusion that many people are finding when you analyse and distil the facts,” George said.

“Now there are several troubling aspects of this matter because first and foremost if documents are not safe and secure within the bowel and belly of the office of the Attorney General then the entire nation ought to be concerned, and one would have thought there would have been a greater degree of consternation by the Attorney General’s office in relation to this because it means nothing is safe or secure.”

The Sunday Guardian reached out to Solicitor General Carol Hernandez, but our calls and messages went unanswered.

Hernandez was appointed Solicitor General in April 2015.

Like the Chief Justice, a Solicitor General is appointed by the President upon the recommendation of the Judicial and Legal Service Commission, with the Prime Minister having the power of veto.

The Solicitor General holds the office until retirement.

In the malicious prosecution case between the Attorney General of Trinidad and Tobago, and the nine claimants (the nine former murder accused), the State was represented by Karen Reid Ballantyne instructed by Amrita Ramsook.

On January 30, Master of the High Court Martha Alexander awarded the defendants of the Naipaul-Coolman case close to $20 million in damages and costs.

In her ruling, Alexander said “Interestingly, the defendant (the state), having entered an appearance, failed to defend the matter…The present matter, therefore, was a substantial one that the defendant chose neither to defend nor to call any evidence save to appear at the assessment to be heard on quantum.”

But, a press release from the Ministry of the Attorney General and Legal Affairs on Friday stated that an error in paragraph three of the January 30 High Court judgment by Master Alexander was corrected.

The release said the paragraph incorrectly claimed that “the defendant, having entered an appearance, failed to defend the matter…”

The Registrar and Acting Marshall of the High Court, according to the release, confirmed that an appearance was not entered by the Attorney General defendant in those proceedings, as erroneously stated in the judgment.

Asked for a comment on the matter, former attorney general Faris Al-Rawi said, “I stand by the statement of the Honourable Attorney General. I’m grateful that he was able to read into the public record some of the systems that I put into place, including circularised instructions to all legal officers under threat of disciplinary proceedings if they did not comply with the reporting systems and instruction-obtaining systems that had been put into place through writing. Because this is a matter of due process I have nothing further to say. I’m confident the Attorney General will manage this matter properly.”

Despite the State’s claim that the file was lost, the attorney representing the Attorney General’s Office participated in the civil case.

Among others, the State’s counsel was referenced in two particular instances in the judgment.

First, according to the judgment, the claimants sought general damages worth $3.5 million (TT), whilst the defendant (the State) recommended that each be paid $1.2 million.

Last week retired justice Rolston Nelson and retired justice Stanley John were both appointed to investigate the case of the missing file.

These are the views of some attorneys:

Om Lalla:

“At what stage did they realise the file was missing? And if the file is missing, how did they reconstruct a file? And if a file is not reconstructed, at what point do you tell the court that there is larceny taking place of a file? And how do you get instructions to go and defend the damages part of the case when you didn’t have that file?

“When a case is running, the court and lawyers will send a notification to the AGs office. Even if the file is missing, at some stage you would be getting a notification of something going on. And those notifications, even if you don’t have a file in the normal scheme of things, will then raise a red flag. Now, if you are the AGs office and you are saying a file is missing, presumably stolen, one would expect you’d go to court and say hold up on this judgment, we have a serious problem here. In those exceptional circumstances, a court in my view may say ‘hold on, let’s find out what is going on here,’ but that didn’t happen.

“The public is outraged by it, and the AG is giving his explanation as he’s told, but does it build confidence in people’s minds as to how it transpired? Is this an explanation that people have confidence in or not? The answer is probably no. Is it an answer just for the sake of giving an answer? And that is where the danger lies. How do you deal with a matter like these? Do you just say, well, ‘I say the file is missing, case closed, let’s move on?’ There are so many people who file malicious cases and it’s aggressively defended by the State.

“It sounds like a long time ago when I used to do a lot of cases for marijuana and cocaine possession when I just started, and very often the police used to come and say the rats ate the evidence. It draws you back to those days when things just got up and walked out of evidence or from exhibits and cases were won.”

Martin Daly:

“I am not bamboozled by the disappeared file story and the proposed appointment of yet another investigator or committee. I am staying focused on the entry of an appearance on the record by the State reported on in one of the daily newspapers. My focus is also on the State having received an emailed copy from the court of a notice of application for default judgment. I will share my views in due course by reference to the Civil Proceedings Rules and how in practice, lawyers or their paralegals keep their court commitment diaries.”

Mario Merritt, who represented three of the accused during the criminal case:

“I find it very strange that a file can disappear for the obvious reason that the file came up on many occasions in the court. The court would not have made a pronouncement without finding out what was going on with the State. It would have been on two occasions that would happen.

“One, when the matter was first brought, the State would have to be served. They would also be served again when the court makes a decision against them and it has gone to the master for final judgment. The court would then want to hear from the State what is the position on the quantum. It means they would have been informed a minimum of twice, but the matter was not adjourned only once. From my understanding, it took a while before the master gave up on the State.

“It’s possible that it was misplaced and someone didn’t follow up when the notices were being sent out, but it’s unlikely that a court would make pronouncements to the State without giving them ample opportunity and without finding out whether or not they were served…Master Alexander, who made the decision, is usually very patient. She’s not somebody who is quick to do anything. It’s difficult for me to see the State not having the opportunity.”

Israel Khan:

“What is passing through my mind is, how many times this might have happened in the past? That matter went to court and there was no defence from the Solicitor General because of some missing file. I don’t know. I’m of the sincere view that they should have a commission of enquiry into this matter because when the matter was before the judge, and she saw that there was no defence, the judge will normally make enquiries about whether the state is putting in a defence. And then the State will be informed through a system that there is a matter that is undefended, are you defending this matter?

“This thing has to be clarified. The possibility exists, and I say it guardedly, there could be massive fraud and corruption taking place.

“This is the biggest criminal prosecution in the history of Trinidad and Tobago. It took two years. It cost the state millions of dollars to prosecute this matter – from investigation to lawyers, then they turned around and sued the state, and there was evidence which went to the jury. So it was a simple defence. There was reasonable or probable cause…Not because the jury says you are not guilty it necessarily means you are innocent. It means the State has failed to prove beyond all reasonable doubt that you are guilty, so you are acquitted. It doesn’t simply mean you can sue the State because every person who was acquitted could sue the State. Something is wrong, radically wrong.”

By: Joshua Seemungal