Akash Sama­roo

Se­nior Re­porter

akash.sama­roo@cnc3.co.tt

The So­lic­i­tor Gen­er­al’s De­part­ment and the Chief State So­lic­i­tor are be­ing de­scribed as “in­ept” and “in­com­pe­tent” as it re­lates to a miss­ing case file.

The dis­ap­pear­ance of the file led to nine men, who were for­mer­ly ac­cused of the kid­nap­ping and mur­der of busi­ness­woman Vin­dra Naipaul-Cool­man, be­ing award­ed a de­fault judg­ment of over $20 mil­lion for ma­li­cious pros­e­cu­tion.

The in­ves­tiga­tive team has since con­clud­ed that the file, which was sub­se­quent­ly dis­cov­ered in an un­oc­cu­pied of­fice was placed there de­lib­er­ate­ly and has even called for the trans­fer of staff who “failed their du­ty to the State.”

Rec­om­men­da­tions are there­fore be­ing made to con­sid­er whether the act­ing So­lic­i­tor Gen­er­al (SG) is the right per­son for the job, the in­stal­la­tion of se­cu­ri­ty cam­eras at the SG’s of­fice, and the trans­fer­ring of staff at­tached to the SG’s De­part­ment for “fail­ing their du­ty to the State.”

Af­ter al­most a year and a half since Jus­tice Stan­ley John and Pamela Schullera-Hinds hand­ed it over to the At­tor­ney Gen­er­al, the fi­nal re­port was made pub­lic.

Lay­ing the re­port in Par­lia­ment yes­ter­day, At­tor­ney Gen­er­al Regi­nald Ar­mour said, “The in­ves­tiga­tive re­port is il­lu­mi­nat­ing and speaks for it­self; I there­fore need say lit­tle about it.”

The time­line

The re­port of­fered a time­line of events as it per­tains to the file which was even­tu­al­ly found in an un­oc­cu­pied of­fice.

It said, “The claim was re­ceived on 22 June 2020 and signed for by a State Coun­sel at the of­fice of the SG. It was re­ceived and signed for by State Coun­sel Ms Na­toya Moore.”

The re­port said on that very day it was for­ward­ed to the Ser­vice Clerk. And the fol­low­ing day it was per­son­al­ly de­liv­ered to the SG’s Reg­istry De­part­ment.

The claim form was then record­ed as re­ceived and there was ev­i­dence to show that it was pre­pared on June 23, 2020, and placed for trans­mis­sion to the SG’s De­part­ment via mes­sen­ger.

How­ev­er, the re­port went on to say, “All the files that were re­ceived at the Reg­istry of the SG’s De­part­ment (on the 17th floor) on June 22, 2020, were tak­en to the SG’s Sec­re­tari­at on the 18th floor and record­ed in the “In­com­ing Reg­is­ter” by Ms Yvette John that is save and ex­cept for file CV2020-01243.”

CV2020-01243 is the file that went miss­ing.

The re­port said, “There is no record­ed ac­tiv­i­ty with re­spect to CV2020-01243 dur­ing the pe­ri­od 22 June 2020 to Au­gust 2021 save and ex­cept for emails sent to Sean Julien (CSS) by Coun­sel for the Claimants.”

The in­ves­tiga­tive team would have then in­ter­viewed for­mer SG Car­ol Her­nan­dez on March 1, 2023.

“She stat­ed that she first be­came aware of this mat­ter on 6 Ju­ly 2021 via an email from Sean Julien (CSS) who in­formed her that an Ap­pli­ca­tion for De­fault Judg­ment had been en­tered by the Claimants,” the re­port read.

On Au­gust 17, 2021, Her­nan­dez re­quest­ed the file from the reg­istry but was in­formed it could not be lo­cat­ed.

How­ev­er, the re­port said on Au­gust 19, 2021, the file had been found on the desk of the then deputy SG Dun­can Byram, who died.

On Au­gust 20, 2021, Her­nan­dez was in­formed that the file had been lo­cat­ed on Byram’s desk which at the time was un­oc­cu­pied save for files stacked in box­es.

How­ev­er, it was not un­til May 18, 2022, that a tem­po­rary file was re­con­sti­tut­ed.

The re­port said in an in­ter­view with Act­ing SG Kar­lene Seenath on Au­gust 4, 2022, “She as­signed the re­con­sti­tut­ed file to (now) Jus­tice Karen Reid-Bal­lan­tyne then a Deputy SG, to take con­duct of the mat­ter on be­half of the Of­fice of the At­tor­ney Gen­er­al at the hear­ing of the As­sess­ment of Dam­ages.”

The re­port added, “The as­sess­ment was heard be­fore Mas­ter Martha Alexan­der on the 4th of No­vem­ber 2022. At the hear­ing, the court heard sub­mis­sions from at­tor­neys for both the Claimants and the AG and re­served its judg­ment.”

How­ev­er, the re­port in­di­cat­ed that there were al­so soft copies of the doc­u­ments that the SG could have ac­cessed.

The re­port stat­ed the miss­ing doc­u­ments were filed elec­tron­i­cal­ly in the High Court Reg­istry on May 29, 2020.

It con­tin­ued, “Our in­ves­ti­ga­tions re­vealed that no re­quest was ever made by the Of­fice of the So­lic­i­tor Gen­er­al (SG) at any time for copies of the doc­u­ments filed dur­ing the pe­ri­od that the mat­ter was on­go­ing.

“Had the then SG made such a re­quest of the Reg­is­trar of the Supreme Court of Trinidad and To­ba­go, as ad­vised by him, copies would have been for­ward­ed forth­with.”

‘An­oth­er clar­i­on cry

for an over­haul of

the in­ter­nal sys­tems’

The in­ves­tiga­tive team con­clud­ed, “This, in our opin­ion, demon­strates that all the nec­es­sary steps were not tak­en by the then SG to ob­tain a du­pli­cate file on re­al­is­ing that the file was miss­ing.

“Had that been done and the SG’s de­part­ment had ac­tive­ly par­tic­i­pat­ed in the claim for ma­li­cious pros­e­cu­tion, there is every like­li­hood that the out­come of the mat­ter would have been sig­nif­i­cant­ly dif­fer­ent and may not have reached the stage of as­sess­ment of dam­ages.

“This demon­strates the lack of ini­tia­tive with­in the civ­il law de­part­ment and re­in­forces the need for ur­gent re­form.”

In its find­ings, the in­ves­tiga­tive team said, “In­ep­ti­tude and in­com­pe­tence are just one of the many de­scrip­tions that char­ac­terise the De­part­ment of the SG and the CSS in the con­duct of this mat­ter.”

The team found that in­ter­est was on­ly shown by the act­ing SG up­on com­ple­tion of the hear­ing of the mat­ter and the Or­der made by the court on Jan­u­ary 30, 2023.

Not­ing that COVID-19 would have im­pact­ed ser­vices, the re­port, how­ev­er, said, “That is no ex­cuse for the to­tal fail­ure to pro­tect the in­ter­ests of the State in this mat­ter. Noth­ing was done to de­fend the ac­tion nor was any de­ci­sive ac­tion tak­en by the of­fice of the SG to seek to avoid the mak­ing of the fi­nal or­der for dam­ages.”

It al­so crit­i­cised the CSS for not en­sur­ing that the SG’s De­part­ment was made aware of the first court hear­ing in Jan­u­ary 2021.

Her­nan­dez came un­der fire in the re­port for fail­ing to take ac­tion to find out why the file had been placed on her deputy’s desk in an emp­ty of­fice and to as­cer­tain the cir­cum­stances sur­round­ing its dis­ap­pear­ance and sub­se­quent dis­cov­ery.

The file on Mr Byram’s desk was said to be the on­ly one there and no one else had been al­lo­cat­ed the emp­ty of­fice space.

“Why, there­fore the file was put there can on­ly be ex­plained as a de­lib­er­ate act on the part of some­one,” the re­port said.

Act­ing SG Kar­lene Seenath was al­so crit­i­cised for hav­ing an al­leged non­cha­lant ap­proach to the mat­ter even when it be­came ap­par­ent that the court was like­ly to make a sub­stan­tial award.

The team ques­tioned if Seenath was the right per­son for the job.

The re­port al­so rec­om­mend­ed the in­stal­la­tion of se­cu­ri­ty cam­eras at the reg­istry of the SG’s de­part­ment, the im­me­di­ate ap­point­ment of a da­ta en­try clerk, prop­er back­ground checks on all staff re­cruit­ed to the SG’s De­part­ment and the trans­fer of mem­bers of staff as­signed to the SG who have “failed in their du­ty to the State.”

In con­clu­sion, the re­port said, “This en­tire sor­ry episode is an­oth­er clar­i­on cry for an over­haul of the in­ter­nal sys­tems in the Of­fice of the So­lic­i­tor Gen­er­al and the Chief State So­lic­i­tor.”

In Jan­u­ary 2023, High Court Mas­ter Martha Alexan­der as­sessed the com­pen­sa­tion for the group af­ter they re­ceived a de­fault judg­ment over the fail­ure of the AG’s of­fice to de­fend their ma­li­cious pros­e­cu­tion case.

Ar­mour sub­se­quent­ly re­vealed that the case was un­de­fend­ed as the file went miss­ing af­ter be­ing served to his of­fice.

Ar­mour ap­point­ed for­mer High Court judge Stan­ley John and re­tired as­sis­tant com­mis­sion­er of po­lice (ACP) Pamela Schullera-Hinds to probe what took place and make rec­om­men­da­tions to pre­vent a re­cur­rence.

No crim­i­nal or dis­ci­pli­nary ac­tion

How­ev­er, the re­port did not rec­om­mend dis­ci­pli­nary ac­tion against any­one. 

“Our in­ves­ti­ga­tion has not found any facts, cir­cum­stances or ev­i­dence, which in our opin­ion, may give rise to, show or es­tab­lish the com­mis­sion of any dis­ci­pli­nary of­fence by any of­fice/of­fi­cer in the Ju­di­cial and Le­gal Ser­vice re­lat­ing to the man­age­ment and con­duct of CV2020-01243,” the re­port said.

It added that the in­ves­ti­ga­tion did not “show or es­tab­lish the com­mis­sion of any crim­i­nal or fraud­u­lent act.”

How­ev­er, the re­port rec­om­mend­ed sev­er­al or­gan­i­sa­tion­al changes with­in the Civ­il Law De­part­ment, which in­cludes the SG De­part­ment.

They in­clude, “Civ­il Law Cham­bers, which should be a merg­er of what is now the So­lic­i­tor Gen­er­al’s De­part­ment and the Of­fice of the Chief State So­lic­i­tor for­mal­ly called the Civ­il Law De­part­ment in keep­ing with the Act.”

Yes­ter­day in Par­lia­ment, Ar­mour said the “change process is al­ready un­der­way.”

He de­fend­ed hold­ing on to the re­port for so long.

Ar­mour said, “It was my grave con­cern that, had this re­port been made pub­lic be­fore now, my of­fice may have be­come em­broiled in lit­i­ga­tion.”

Ar­mour said the Par­lia­ment need­ed to pass Act No 14 of 2024, The Mis­cel­la­neous Pro­vi­sions (Ju­di­cial and Le­gal Ser­vice) be­fore the re­port was made pub­lic as the act serves to ad­dress some of the short­falls point­ed out in the re­port.

On De­cem­ber 2023, High Court Judge Joan Charles up­held an ap­pli­ca­tion to set aside the de­fault judg­ment she grant­ed in Jan­u­ary 2021 as well as the sub­se­quent as­sess­ment of dam­ages done by Mas­ter Alexan­der. 

The group’s lawyers filed an ap­peal chal­leng­ing the de­ci­sion. A rul­ing is yet to be de­liv­ered.