Legal action is being taken to prevent destruction of the contentious Darryl Smith sex scandal report.

Attorney Ché N Dindial of Freedom Chambers has issued a letter dated November 4, 2019 to the permanent secretary at the Office of the Prime Minister on behalf of former government minister Devant Maharaj stating that instructions were given to make an application for an immediate injunction from the High Court to restrain the Attorney General and Prime Minister from destroying the report.

“Mr Maharaj is concerned that this request for the destruction of the report could be seen by the public as part of a larger political conspiracy and a carefully orchestrated plan that is designed to bury this damning report so that the public will never know whether hush money was paid out of public funds to silence the victim of serious sexual harassment by a Government minister (Ms Carrie-Ann Moreau),” stated the letter.

The attorney noted that his client read with “alarm” the contents of a legal letter issued by Smith’s attorney Annabelle Sooklal-Boynes in which she has called for the report to be destroyed. The letter stated that, should the Attorney General accede to this request, it would render Maharaj’s claim for judicial review which seeks an order from the court compelling the Government to disclose a copy of the said report nugatory.

“We therefore view this as a clever attempt to undermine and prejudice our client’s case. It is a dangerous request with serious consequences as it amounts to a pre-emptive manoeuvre that can render the court’s jurisdiction futile and impotent,” stated the letter.

The letter further noted that the “major players” in this Smith sex scandal are beneficiaries of the State.

“The major players either receive work from the Government or have been appointed to serve in public office at the behest of the Government thereby making it a potentially politically incestuous and poisonous affair,” stated the letter and listed the following:

1. Annabelle Sooklal-Boynes, who acts for Darryl Smith, was appointed by the Government to serve as a commissioner on the board of the Port Authority of Trinidad and Tobago.

2. Michael Quamina, who represented Moreau, is the prime Minister’s lawyer and was recently appointed chairman of Heritage Petroleum Company Ltd.

3. Douglas Mendes SC, who provided the advice rubbishing the report, is retained by the Attorney General to act in several matters on behalf of the State and was appointed by the Government to serve as the chairman of the SEC.

4. Elaine Green, the legal adviser to the committee, serves under Mr Mendes’ chairmanship as a member of the SEC because she was also appointed by the Government to serve on that board. She also represents the State in several high-profile legal matters.

Incredible state of affairs

The letter noted that Maharaj had taken legal action against the Prime Minister in a matter CV 2019-02437 Devant Maharaj v the Office of the Prime Minister,

In this matter Maharaj is represented by former attorney general Anand Ramlogan who sought judicial review challenging the decision by the Prime Minister to refuse to disclose the report under the Freedom of Information Act (FOIA) to Maharaj.

The legal letter pointed out that leave was granted in this matter by Justice Nadia Kangaloo on July 10, 2019 after Maharaj’s FOIA request to the Office of the Prime Minister dated December 11, 2018 was refused.

It added that the matter currently stands adjourned to January 29, 2020, where Douglas Mendes SC and Rishi Dass appear for the Office of the Prime Minister.

The letter pointed out that, in 2018, allegations of sexual misconduct by Smith surfaced and the scandal involved the settlement of $150,000 of taxpayers’ money being paid to Smith’s former personal assistant, Carrie-Ann Moreau, who alleged sexual misconduct and wrongful dismissal by the minister.

It noted that the settlement was paid as a result of the matter entering the Industrial Court.

The letter stated that in the midst of this scandal, the said minister was moved to the Housing Ministry where after 24 hours he was fired following a meeting between the Planning Minister and the Prime Minister.

The Prime Minister then appointed a three-member committee to thoroughly review and report the circumstances surrounding the dismissal and payment of compensation to Moreau.

The letter stated that, given the “incredible state of affairs that preceded this astonishing request” (Smith’s attorney’s request to destroy the report), an application for an immediate injunction from the High Court to prevent the report from being destroyed will be made.

It added that a copy of the report is to be immediately deposited with the court “pending the hearing and determination of our client’s case”.

“We send this letter to forewarn you of this application and to enquire whether you would be prepared to give an undertaking not to take any steps to destroy the said report until the court can complete its adjudication to determine whether it should order the Government to disclose same. Naturally, if the report is destroyed before the court can give its decision, this will prejudice and compromise the administration of justice and undermine the integrity of the court,” stated the letter.

“We therefore ask that you indicate your position within 24 hours as a matter of urgency (that is to say, by 4 p.m. on Monday, November 4th, 2019. Should we fail to hear from you, we shall assume that you are unwilling to give the requested undertaking and proceed to file our client’s application for urgent injunctive relief to restrain you from pre-empting the court and destroying the said report in a naked attempt to defeat our client’s rights under the Freedom of Information Act,” it stated.

Shocking and troubling

The letter also noted comments made by the Prime Minister and the AG about the report being flawed and stated that Maharaj was concerned that more public funds are being unnecessarily spent to ensure that this report “does not see the light of day”.

“Mr Maharaj is also concerned about justification that is being advanced ie the allegation that the report is fundamentally flawed because Mr Smith was not given an opportunity to be heard in breach of breach of natural justice,” it stated.

It noted that given the qualifications, knowledge and experience of the members of the investigating committee the allegation is “shocking and troubling”.

The letter pointed out that Elaine Green is an attorney with over 26 years’ experience. She was appointed by the Government to serve as a member of the board of the Securities and Exchange Commission of Trinidad and Tobago (SEC). Ironically, the SEC is chaired by the very Douglas Mendes SC who was hired by the Attorney General to review and advise on the committee’s report. She has been retained by the State in several high-profile cases, is an external adviser to the DPP and acts for many State enterprises and statutory bodies in important cases.

It noted that Jackie Wilson is an experienced human resource manager and retired permanent secretary who has been hired by the Government in several high-profile projects including the Steering Committee to Re-structure SAUTT (Special Anti-crime Unit of Trinidad and Tobago).

It further noted that Folade Mutota is the executive director of the Women’s Institute for Alternative Development (WINAD) and serves as a temporary Independent senator.

“It is difficult to imagine how such a distinguished committee could make such a basic and glaring error. It is an elementary and simple common sense principle that a man is entitled to be heard before an adverse finding could be made against him. The allegation that this basic principle could have been breached is inherently incredible given the presence of such a seasoned and experienced attorney on the committee who continues to be retained by the State in several cases and continues to serve in public office at the behest of the Government,” stated the letter.

“If the committee made such a basic error it reflects gross incompetence and negligence that would have merited Ms Green’s immediate removal from the SEC and the high-profile cases in which she acts for the State. The same can be said of Ms Wilson and Ms Mutota,” it added.

The legal letter to the PS also contained an additional FOIA request demanding information on the payments and details of the three- member committee that was appointed to produce the Smith report. Information on the following was requested:

(i) The amount of money that was paid to each of the three-member committee that produced the Darryl Smith Report, the members being Jackie Wilson, Folade Mutota and Elaine Green;

(ii) Whether any steps have been taken to recover the monies paid to the said committee members in light of the fact that the Attorney General and the Prime Minister have both said the report was useless and had to be dumped;

(iii) Whether any steps have been taken to remove any of the said committee members from any of the other committees and public offices to which they have been appointed by the Government in light of the alleged demonstrated incompetence and negligence and breach of duty of care that has rendered their report useless;

(iv) A copy of the terms of reference of the three-member committee that produced the Darryl Smith Report, the members being Jackie Wilson, Folade Mutota and Elaine Green;

(v) A copy of the letters of appointment for each of the three members in the committee;

(vi) A copy of all invoices or bills submitted by the three members of the committee for the investigation and production of the Darryl Smith Report, and all receipts provided by the recipients;

(vii) A copy of the policy, practice, procedure and criteria used in selecting the three members of the committee;

(viii) A copy of the legal advice the Attorney General claims he received and provided to support the position that the Darryl Smith Report is procedurally improper and unusable;

(ix) A copy of any invoice, bill and/or quotation provided by the relevant legal adviser(s) who provided the said legal advice, and any receipts or proof of payment for the said advice.

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