Concern over Brown’s ‘self-incrimination’
Ewart Brown will not have to answer questions from the witness box at the Commission of Inquiry.
The former Premier was issued a subpoena requiring him to appear today but his lawyer Jerome Lynch, QC, yesterday successfully argued his right to claim privilege against self-incrimination.
The commission also heard yesterday that high-profile lawyer Delroy Duncan had been sacked by Dr Brown's cousin, businessman Donal Smith, as corporate agent for Mr Smith's company Bermuda Emissions Control Ltd.
The firing was linked to a subpoena issued by the tribunal for BECL's financial records. Mr Duncan told the panel he held the documents but was loath to release them as Mr Smith had threatened him with a lawsuit if he did so.
He read out an e-mail sent to him by Mr Smith in which he was told he was fired. Mr Smith told the commission he considered its investigation to be a “farce” or a “witch-hunt” and would not consent to the release of the records.
The four-person Commission of Inquiry is exploring the mishandling of public funds from 2010 to 2012, as outlined by the Auditor-General in a damning report which detailed how official financial instructions were regularly disregarded.
Dr Brown was ordered to appear before it to answer questions about government projects carried out during his time as Minister of Tourism and Transport and as Premier, including ones involving BECL and the construction of the TCD building and three emissions testing centres.
The other projects were: Port Royal Golf Course, the Heritage Wharf cruise ship pier at Dockyard and the Dame Lois Browne-Evans police and court building.
He was also to be quizzed about controversial contracts with US-based companies GlobalHue and Ambling, as well as on why a delegation of accounting responsibilities was passed from the Ministry of Public Works to the Ministry of Tourism for some contracts.
Mr Lynch made a formal application for the subpoena issued to Dr Brown to be discharged.
He said his client, the subject of a long-running police inquiry which has cost taxpayers more than $2 million, was claiming privilege against self-incrimination, as was his “constitutional, statutory and common-law right”.
“He is unique of all the witnesses,” Mr Lynch said.
“Firstly, because of his former position as Premier but set against that is the fact that he is a man who, it has been declared, is part of an ongoing investigation by the police.”
He added: “He is left in some considerable jeopardy if he was placed in the witness box and asked questions.”
Commission chairman Sir Anthony Evans said the tribunal accepted Dr Brown's right to claim privilege but noted that, without his assistance, it would have to reach its conclusions based on other evidence.
He said the subpoena would be discharged once Dr Brown swore an affidavit asserting that right.
Mr Lynch's application was adjourned until 11am today to allow that to happen.
The subpoena against Mr Duncan, a director of Trocan Management Limited, which was corporate agent for BECL, was discharged and the commission said it would make no further order in relation to it.
Sir Anthony said the commission had sympathy with the lawyer, who had asked for “some form of allowance” which would release him from having to comply with the summons.
The chairman told Mr Smith, who was sitting in the public gallery, it would not report him to the court for refusing to allow the release of the records but would have to complete its inquiry without them.
“You will appreciate that we won't have had any evidence from you, any assistance from the company. The company won't be in a strong position to complain.”
That prompted Mr Smith, the founder of BECL and former deputy mayor of Hamilton, to warn that he would expose much information publicly, if pushed, that could prompt another commission. He said the “whole world will know that ... this is a farce or a witch-hunt”.
Mr Smith added: “I don't run from a fight. There is no evidence. I have not been charged for anything. I want to put it to you: I'm not backing up from this.”
This month, BECL lost a legal appeal against a subpoena requesting that it provide documents regarding the development of the TCD emissions centre in Pembroke.
The Auditor-General concluded the cost of that project tripled from $5.3 million to $15.2 million after control was “relinquished” by the Government to two linked private companies, one of which was BECL. She found a disregard for normal financial controls.
BECL was awarded a five-year multimillion-dollar contract to carry out safety and emissions testing in 2009, without the project going out to tender, and the contract was renewed in 2014.