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Judge refuses Royal Gazette bid to publish affidavit

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Brockman investigation: Evatt Tamine (Photograph by Dean Sewell, Sydney Morning Herald)

A judge has ruled in favour of a lawyer who sued The Royal Gazette after it reported on the work he did in Bermuda for an American billionaire accused of tax evasion.

Puisne Judge Larry Mussenden ordered the newspaper not to publish anything contained in an affidavit sworn in July 2020 by Australian Evatt Tamine, which Mr Tamine claimed had been filed in relation to a proceeding in the Supreme Court of Bermuda, whose file had been sealed. Mr Justice Mussenden agreed with Mr Tamine and has ordered that the affidavit remain sealed, even though that sworn statement is available on an official US Government website and was previously reported on by another media.

The Gazette is appealing the judgment.

After lawyers for The Royal Gazette applied to have the original injunction set aside, Mr Justice Mussenden ruled that his original injunction should remain in place until the issue of whether there had been a breach of confidentiality was decided at the conclusion of a full civil trial.

“...I am not satisfied that the confidentiality of the...affidavit has been lost by virtue of the rather limited publication,” he wrote.

Mr Tamine, who worked for Robert Brockman, objected to articles published by The Royal Gazette on September 16, 2021, which included information taken from the court affidavit he had sworn the previous year.

He applied for and won an initial, temporary injunction in the Supreme Court against Bermuda Press (Holdings) Ltd, The Royal Gazette’s parent company, in September 2021.

BPHL was not represented at that emergency hearing, at which time Mr Justice Mussenden ordered the newspaper to remove any information from the affidavit or any link to the document from its website.

The Gazette complied but challenged that order over the course of two hearings in October 2021.

We were unable to report on those proceedings on the judge’s instructions and had to apply for permission to report on this week’s ruling, which was granted, with certain conditions.

Dexter Smith, Editor of The Royal Gazette, said: ““It is very disappointing that the public are being deprived of information of great importance in a case that is highly visible in the broader public domain and of significant public interest in our jurisdiction. We intend to continue to fight this as a matter of principle.”

The Royal Gazette’s stories detailed Mr Tamine’s employment over many years in Bermuda for Mr Brockman, a car dealership software mogul who is alleged to have hidden some $2 billion from the United States Internal Revenue Service over the course of 20 years and is facing a criminal trial.

Robert Brockman

The case is the largest-ever tax fraud prosecution brought against an individual in the US and Mr Tamine appeared before a Grand Jury as a key witness for the US Department of Justice.

The affidavit he filed in July 2020 related to civil proceedings in the Supreme Court of Bermuda concerning the A. Eugene Brockman Charitable Trust, which was set up on the island in 1982 and is said to have assets of about $6 billion.

US prosecutors named the A. Eugene Brockman Charitable Trust in the indictment against Mr Brockman, alleging that he used a web of offshore entities based here and in Nevis to hide investment income from the IRS.

The court file concerning the trust proceedings was sealed by Puisne Judge Shadé Subair Williams — but US prosecutors working on the Brockman case obtained a copy of Mr Tamine’s affidavit and filed it with the United States District Court for the Southern District of Texas, making it publicly available.

The American judge presiding over Mr Brockman’s criminal case denied a petition by Tangarra Consultants — Mr Tamine’s Bermudian-based consultancy firm — to seal the affidavit on September 23 last year.

United States District Judge George C. Hanks wrote: “The court finds that the motion to seal the Tamine affidavit fails to establish any compelling need to deny public access to these pleadings.”

Mr Justice Mussenden issued his temporary injunction the next day [September 24, 2021].

Mr Tamine, who now lives in Britain, argued in his civil case against the Gazette that he filed the affidavit on the basis it was confidential and would be part of a sealed court file.

He explained he swore the statement in order to rebut allegations made about him during civil trust proceedings here, which he denies.

Those allegations were referred to in a recent, publicly available ruling by Chief Justice Narinder Hargun, who wrote that Mr Tamine had been accused of having “wrongfully” taken $28 million when he had control of a company which was the trustee of the A. Eugene Brockman Charitable Trust and that he “denied any wrongdoing in this regard”.

Mr Tamine said he was concerned about “serious ramifications and potential damage” to his wife and children “should an inaccurate report be published in Bermuda and online elsewhere”.

Paul Harshaw, for Mr Tamine, claimed the Gazette defied the court’s sealing order and said it was important that court orders were followed.

“We say that this sort of publication of information, which is known to be confidential and is subject to a sealing of the court, undermines the judicial process,” he said.

Allan Doughty, for BPHL, argued that the injunction should be set aside.

He said “the genie is out of the bottle” because of the disclosure of the affidavit elsewhere.

Mr Doughty added: “The court has to look at the reality of the situation.”

Mr Justice Mussenden noted in his judgment that the Gazette reported that Mr Tamine was married to his Bermudian wife, lawyer Sophie Tod, and published the name and address of the property they own in Fairylands, Pembroke.

But neither of those two details — Ms Tod’s name nor the Fairylands address — were contained in the July 2020 affidavit.

The Gazette obtained those facts from Bermuda Supreme Court judgments, the local electoral roll and the Government Land Valuation website.

Mr Justice Mussenden also said he considered whether the confidentiality order in the trust proceedings covered Mr Tamine’s affidavit.

“...I am at this point sceptical about whether it does or does not,” he wrote.

The judge said that point needed to be determined “at trial, after further evidence and relevant disclosure”.

He wrote: “Putting aside public-interest arguments for a moment, it would serve no useful purpose now to set aside the injunction, only to find at trial that the…affidavit was covered by the confidentiality order.

“Of course, the counter-argument can be made. However, in my view, the balance tips to Mr Tamine on this point.”

Mr Brockman, 80, denies all 39 charges against him, which include tax evasion, wire fraud and money laundering.

His lawyers claim he has dementia and is not mentally competent to stand trial.

A hearing to determine the issue was held in November but no decision has been made yet on whether the case will proceed.

According to Bloomberg, Mr Tamine appeared at the hearing and said, in surprise testimony, that his former boss had broken no laws in the US.

Fight for press freedom

The Royal Gazette’s bid to get the temporary injunction obtained by Australian lawyer Evatt Tamine lifted is not the first case the newspaper and its parent company, Bermuda Press (Holdings) Ltd, have fought to uphold the freedom of the press.

• 1981: senior magistrate Richard Hector sued the Mid-Ocean News, the Gazette’s sister paper, for libel after it published a letter containing accusations against him. The newspaper defended the lawsuit and Puisne Judge Vincent Charles Melville ruled that the newspaper had the right to publish it, even though the letter was not referred to or read in court.

• 1993: Lawyer Julian Hall sued The Royal Gazette for publishing tapes from the former Casemates prison involving a defendant ultimately jailed for his role in a drug-smuggling ring. An injunction was obtained at a hearing at which the newspaper was absent. The Gazette contested the gag and the Court of Appeal upheld the paper’s argument that the transcripts were part of a public record under the Supreme Court (Records) Act 1955 and therefore it had the right to publish them.

• 2007: The Attorney-General and Commissioner of Police sought a gag order from the courts after ZBM television news and the Gazette’s sister newspaper, the Mid-Ocean News, reported on revelations from a leaked police dossier on a scandal surrounding the publicly funded Bermuda Housing Corporation scandal. The next year, the Privy Council in London — Bermuda's highest court of appeal — ruled that the media should not be banned from reporting the extracts. The Attorney-General and Commissioner of Police were ordered to pay costs, which were expected to run to six figures and would have to be met by the public purse.

• 2009: The Attorney-General obtained a temporary injunction against The Royal Gazette to stop it publishing a leaked Cabinet memorandum about a secret deal for the Government to buy the Swan Building for $24.5 million. The Gazette fought back, convincing Puisne Judge Geoffrey Bell to set aside the injunction and reject a bid from the Attorney-General for a permanent ban on publication.

• 2015: The Royal Gazette struck a blow for freedom of the press when it fought for the right to publish several affidavits that were sworn into evidence during the legal dispute between Michael MacLean and the Bermuda Government. The result was a landmark ruling by then-Chief Justice Ian Kawaley allowing the public to have unprecedented access to the sworn affirmations from developer Mr MacLean and government ministers in relation to the Hamilton waterfront deal.