High court judge rules against Sir James’ application

After legal manoeuvres dating back to 2007, which brought the Commission of Inquiry into the Ottley Hall Project to a virtual standstill, the way has been cleared for the matter to proceed.{{more}}

High Court Judge Gertel Thom handed down a judgement on Thursday, June 23, in Grenada, dismissing an application made by Sir James Mitchell for judicial review. She also ruled that there be no order of costs and the Order granting a stay of proceedings of the Commission of Inquiry be discharged.

The judgement comes almost four years after Sir James, a former Prime Minister of St.Vincent and the Grenadines, was issued a Salmon Letter and a summons requiring him to appear as a witness in the Commission of Inquiry.

He sought leave to apply for judicial review, with his lawyers arguing on the grounds of apparent bias and procedural unfairness by the Commissioner of the Inquiry Ephraim Georges against Sir James.

The leave was refused by the High Court, but was subsequently granted by the Court of Appeal.

Sir James is represented by lawyers Ramesh Maharaj, Mira Commissiong, and Louise Mitchell-Joseph, his daughter.

In his arguments to show that there was an apparent bias against Sir James, Maharaj contended that the 2005 Report entitled “Ottley Hall and Union Island Resorts Ltd. Projects Report of Possible Criminal Acts or Offences By Certain Individuals”, which was sent to the Governor General and the Director of Public Prosecutions (DPP), contained conclusionary statements and findings adverse to Sir James.

“The apparent bias of the Commissioner is obvious from the purpose for which the report was sent to the DPP, the fact that it was sent at a time when the hearing before the Commission was stayed because of the pending litigation and during an election period”, Maharaj stated.

He further contended that the Commissioner made conclusionary statements and findings in the Report without first hearing Sir James; his actions amounted to prejudging the issues and constituted apparent bias.

Anthony Astaphan, representing the Commission of Inquiry along with lawyer Joseph Delves, responded that the court ought not to make a determination that the Commissioner was biased simply on the basis of certain words used in the Report. Astaphan said, “Rather the Court must consider the context and particular circumstances of this case, which the informed observer would have known or been aware of before making making a decision in the matter”. He further submitted that Clause 13 of the Terms of Reference set out for the Commission of Inquiry requires the Commissioner to submit interim reports to the Governor General and the DPP.

Justice Thom, in last Thursday’s ruling, stated after examining the facts of the case, “I find that the fair minded and informed observer would not conclude that there was a real possibility that the Commissioner was biased. Also there was no procedural unfairness”.

She agreed with Astaphan that the Commissioner is simply required during the course of his investigation to inform the Governor-General and the DPP of any facts, circumstances, or evidence, which shows that an offence may have been committed. She also agreed with the argument that the Commissioner is not required at this stage of the Inquiry to report his conclusion on any issue, but simply to transmit information which he has received during his investigation.

“In these circumstances, I am of the opinion that the Commissioner was not required to disclose to Sir James that he intended to report the facts and or evidence that he has received thus far. Also the Commissioner was not required to give Sir James a hearing before he transmitted the information. Procedural fairness requires that Sir James be heard before the Commission makes a conclusion adverse to Sir James,” Justice Thom summarized.

The Commission of Inquiry, which commenced on April 28, 2003, was set up to investigate the Ottley Hall Marina and Shipyard Project and Union Island Project. These development projects commenced during the 1990’s when Sir James served as the Prime Minister and Minister of Finance of St.Vincent and the Grenadines.

Commissioner Georges, a retired judge, is required to investigate among other issues, the circumstances surrounding the projects, in particular the discussions and communications between Dr. Aldino Rolla and Sir James and other Ministers of Government; the identities and inter-relationship of the persons and corporate entities involved in the planning and construction of the projects; the purpose of the transfer of Crown or public lands to the projects or corporate entities involved in the projects and the procedures followed for the transfer of the said lands to the projects; the reason or reasons for the failure of the projects and the person or persons responsible.

The Commissioner is mandated to report immediately in writing to the Governor General and the Director of Public Prosecution, the facts, circumstances or evidence which in the opinion of the Commissioner might give rise to show or establish inter alia criminal acts, persons obtaining any personal and unlawful benefit, and improper, corrupt or fraudulent relationships.