High court judge, Justice Dexter Theodore on Tuesday heard arguments in a case involving attorney-at-law, Reynold Benjamin who is seeking a judicial review of a decision taken by Chief Magistrate, Tamara Gill that he face trial before a judge and jury in connection with an alleged fraud committed against the controversial Capital Bank International Ltd known locally as Capbank.
Benjamin was represented by Dr. Francis Alexis QC, and the State by Solicitor General, Dwight Horsford in the matter which was heard at High Court No.4 on the Carenage.
The lawyer is currently on $50, 000 bail, with two sureties after being charged with two counts of fraudulent breach of trust amounting to $845, 000 in the Capbank saga.
Benjamin was retained by Capbank to fight a decision of the Eastern Caribbean Central Bank to refuse the Finton DeBourg-led bank into its Clearing House facility in order to allow the local financial institution to issue and clear its own cheques.
Capbank had applied to the 1990-95 Congress government of Prime Minister Sir Nicholas Brathwaite for a licence to operate a bank and it was turned down.
However, when the New National Party (NNP) took office in June 1995, the then Prime Minister and Minister of Finance, Dr. Keith Mitchell overturned the decision and granted DeBourg the licence to operate the bank.
In the face of the ECCB position, Capbank was forced to use the bank accounts of a number of prominent locals including a former Governor-General to do financial transaction.
When depositors made a run on the bank to take out their funds, Capbank could not make payments and government was forced in 2008 to appoint Accountant, David Holukoff, the current Chairman of the Citizenship by Investment (CBI) programme, as the receiver.
Holukoff discovered that Benjamin was allegedly holding $845, 000 for Capbank and wrote him to return the money which was not done.
The Receiver filed a complaint with the Financial Intelligence Unit (FIU) of the Royal Grenada Police Force (RGPF) that the CapBank’s attorney did not use the monies to do what he was supposed to do and the monies were not returned to the Bank.
The FIU investigated the matter and charged Benjamin with two counts of fraudulent breach of trust.
When the matter came up for hearing Tuesday before Justice Theodore, the issue of contention was Holukoff’s appointment as Receiver for the bank.
Female high court judge, Justice Claire Henry had ruled that the first appointment in February 2008 was invalid since it did not reach the ECCB requirements and the other appointment was in September 2008.
Solicitor General Horsford asked the court to dismiss Benjamin’s claim for judicial review since he felt that Chief Magistrate Gill had sufficient evidence before her to commit him the attorney to stand trial for the two offences slapped on him.
In response, Dr. Alexis QC is contending that because the High Court had declared invalid the first receivership of Holukoff then there was no proper complaint before the court upon which the Chief Magistrate could have committed his client to stand trial.
Speaking with THE NEW TODAY following nearly three hours of hearing before the high court judge, Solicitor General Horsford said he took the view that all the police need is credible information upon which they could act.
He said in this case “it does not matter (and) is of no distinguishing significance where information as to the commission of a crime comes from. It could come from an invalidly appointed receiver as in the first appointment in this case, or it can come from a trespasser upon somebody’s premises who sees the commission of a crime…in this case even though the receivership was declared invalid, whatever information Holukoff as the receiver who was declared invalid would have given to the police was actionable because it disclosed the commission of an offence.”
According to Horsford, if the court agrees with Alexis QC then “it means that the charges against him (Benjamin) will have to be re-laid and another preliminary inquiry would have to be held”.
He said, “if the court agrees with us and dismisses the judicial review claim it would clear the way for the DPP to proceed in the High Court to indict Mr. Reynold Benjamin to face a judge and jury in the High Court.”
THE NEW TODAY understands that Justice Theodore is expected to hand down his ruling in the matter before he departs the jurisdiction in July next year.