Geraldine Cabey Claimant v His Excellency, the Governor of Montserrat Attorney General Defendant [ECSC]

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Redhead J. (Ag.)
• Judgment Date: 07 April 2012
• Judgment citation (vLex): [2012] ECSC J0407-1
• Docket Number: Civil Claim No. 10 of 2007
• Date: 07 April 2012

[2012] ECSC J0407-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Civil Claim No. 10 of 2007

Between

Geraldine Cabey

Claimant

and

His Excellency, the Governor of Montserrat the Attorney General

Defendant

1 Redhead J. (Ag.) The Claimant in this action, is an Accountant by profession. She holds a Bachelor of Science degree and a MBA degree in finance from the University of the West Indies. She joined the Civil Service of Montserrat on or about 21^st October 1982. In 1993 the Claimant joined the Treasury and from 1994 she was responsible for the preparation of the annual accounts in the Treasury Department.

Redhead J. (Ag.)

2 In 1997 because of the volcanic crisis which led to massive evacuations of Montserratians from the Island, Delta, the main supplier of petroleum products to the Island eased operations on that Island. The Government of Montserrat undertook to manage the supply of fuel in Montserrat through the Emergency Department fuel operations.

3 In or about 2000 there were queries relating to monies paid into the Emergency Department fuel operations. In April 2002 The Governor of Montserrat set up a Commission of Inquiry to enquire into this matter. It is apparent to me, that as a result of the report of that enquiry the Claimant was prosecuted on a four count indictment of theft of $19,540.00 and four counts of false accounting. She was convicted by a jury of her peers on four counts of theft of $13,360.00 and five counts of false accounting. Mrs. Cabey was sentence, to three months imprisonment on each count. The Claimant served her sentence. The Claimant appealed her conviction. The Court of Appeal allowed her appeal and consequently quashed her conviction. It seems that the Court of Appeal allowed the Claimant's appeal on the ground that at her trial no direction was given to the jury on the Claimant's good character.

4 On 23^rd February 2006, Mr. John Skerritt, Financial Secretary, wrote to the Permanent Secretary, Administration inter alia, as follows:

"… In 2000 the Auditor General raised audit queries relating to the Emergency Department fuel operations queries and monies collected in respect of these operations by the Treasury Department. In response to those queries Mrs. Cabey submitted cash summeries/sheets which were found to be false and misleading and by her response dated 25^th July 2001, submitted bogus photocopied treasury receipts cashier receipts. Several attempts were made by the Auditor General to obtain satisfactory explanations to these queries. They were unsuccessful and referred the matter to the Financial Secretary. The Accountant General was asked to respond satisfactorily to the Auditor or an independent Commission would be set up to provide the explanations. She did not reply and the matter was referred to the Governor as Head of the Public Service. She eventually responded but the explanations were still unsatisfactory. A commission of Inquiry was set up to look into this matter and Mrs. Cabey was placed on leave as of 28^th March 2002. The Commission of Inquiry interviewed all parties to confirm whether the queries were valid and to provide an opportunity to Mrs. Cabey and other officers connected with the fuel operations to provide explanations with respect to these queries. The Report of the Commission was submitted to the Honourable Attorney General's office to determine whether there was a cause for criminal or disciplinary proceedings. Criminal proceedings were instituted against the Claimant.

……. Her trial lasted from 5^th May to July 2004 the jury returned an unanimous verdict of [guilty] of nine out of the ten counts on the indictment. She was acquitted of one [count] of theft of $6000.00. Mrs. Cabey was sentenced to three (3) months imprisonment on each of the other nine (9) counts. Mrs. Cabey served her sentence but appealed to the Court of Appeal on 18 grounds of appeal, she applied to the Court of Appeal to add a further ground making a total of 19 grounds of appeal. She was successful on the 19^th ground in the appeal because her lawyer failed to produce evidence of Mrs. Cabey's good character."

Notwithstanding this result, the evidence regarding bogus receipts and false accounting remain real and valid and is important in terms of the management of Public monies and in holding public office. This matter alone makes it impossible to return her to the post of Accountant General because the public trust would have been severly eroded and could not be easily restored.

The second issue relates to the conduct and expressions of the officer with respect to her colleagues, staff at the Treasury and Senior Officers within the civil service. Examples of this can be gleaned from the record of the Court and to continue her employment could only make a hostile and untenable work environment.

In view of these circumstances, I am recommending that Mrs. Cabey be retired in the public interest under Regulation 35 of the Public Service Regulations. This recommendation is without prejudice to the entitlement of the officer to all salaries and allowances which but [for] her suspension from the performance of her duties within the Public Service, would have been paid to her.

The urgent issue to be addressed at this point is to pay all arrears of salaries and allowances due and to pay the current salary and allowances of the post until the report is duly considered by the Public Service Commission and a decision is taken as to whether or not she should be retired in the public interest. Also, efforts must be made to settle all legal costs as soon as possible after they are known.

John R. S. Skerritt

C. C. Her Excellency, The Governor

Honourable Attorney General."

5 On 15^th December 2006, Her Excellency, The Governor, Mrs. Deborah Barnes Jones, wrote:

"Dear Mrs. Cabey,

I have received from Public Service Commission (PSC) a report containing their consideration of a recommendation on the report from the Financial Secretary that in is it the public interest that you be retired from the public service.

I have carefully considered the PSC's report together with the following documents, among others, which were available to the PSC, to you (through your legal representatives), and the Financial Secretary, namely:

• a. The report of the Financial Secretary dated 23^rd February, 2006 and other correspondence from him which were considered by the PSC in their deliberations.

• b. The written representations dated 26^th July, 2006 and other correspondence from your legal representatives which were considered by the PSC in their deliberations.

• c. Correspondence exchanged between the Secretary of the PSC and the Financial Secretary and your legal representatives which the PSC considered in their deliberations.

6 Having done so, I have come to the determination that in all the circumstances, it is in the public interest that you should be retired from the Public Service. Accordingly, in the exercise of the powers conferred upon me by Section 16(1) of the Constitution of Montserrat and all the powers enabling me in that behalf, I hereby retire you from the Public Service, effective 31^st December, 2006. You are entitled to three months salary in lieu of notice, your last day of service for computation is 31^st December 2006.

7 Your retirement is without prejudice to any outstanding benefits to which you may be entitled including in particular your pension which in accordance with regulation 37 of the Public Service Commission Regulations shall be dealt with under the provision of the pension law.

8 I have reached my decision on the basis that the necessary mutual trust and confidence required for you to remain in post no longer exists. I have laid out below in more detail how I come to this decision.

Criminal Prosecution

9 I have in particular carefully considered and determined that as far as your criminal prosecution was concerned.

(a) You were entitled to defend yourself vigorously within the permissible limit of the law, including attacking the character and credibility of the prosecution witnesses, and that in doing so, you should neither be punished nor be in fear of being punished.

(b) The quashing of your convictions by the Appeal Court in the eyes of the law, meant that you did not commit any of the fraud offences for which you were convicted by the jury of the High Court.

(c) In line with these facts, I note that every effort has so far been made to ensure that you did not, as a result of the criminal prosecution referred to above, suffer any loss of financial benefits otherwise accurable to you within the Public Service.

Public Interest Public Confidence and the Accountant General

10 I have considered the power and duties of the Accountant General under the Finance (Administration) Act and note that in addition that being the custodian and manager of public moneys, stamps, securities and other accountable documents, the Accountant General is the officer charged among things with –

(a) Compilation and management of the accounts of Government

(b) Receiving of revenue and other monies into and making payment from the consolidated funds.

(c) Giving of general and special accounting instructions in relation to public monies and accounts etc.

(d) Authorizing and maintaining all public and official Bank accounts of Government.

11 In the due and efficient execution of these statutory pecuniary duties, the Accountant General must of necessity work very closely with the Financial Secretary, in particular and with all other Accounting Officers of the different Ministries and Departments.

12 The nature of the office, the powers and duties of the Accountant General require the maintenance of public confidence not only in the office itself but also in the office holder. I am clear in my mind that what happens to the office of the Accountant General and how it is run is of great public...