VANCOUVER, Oct 21, 2004
The Globe and Mail

A central witness at the Air-India trial misled the court in order to avoid the appearance of collusion with two other witnesses, defence lawyer Richard Fernyhough says.

During the second day of final submissions at the international terrorism trial, Mr. Fernyhough attacked the credibility of the witness who testified that Ripudaman Singh Malik asked him to take a suitcase on a flight to India a few months before the deadly Air-India disaster.

Mr. Malik told him he would be considered a martyr if he did not return, the witness told the court. After the twin bombings killed 331 people on June 23, 1985, Mr. Malik asked him not to tell anyone about their conversation, he testified. A court order prohibits the publication of his identity.

The witness did not tell police about the incriminating conversations until April of 1997.

While in the witness box, he repeatedly said he did not tell anyone else about the conversation with Mr. Malik, Mr. Fernyhough said.

The witness specifically denied telling a witness named Narinder Singh Gill and a second witness, a woman at the centre of the prosecution's case against Mr. Malik.

However Mr. Gill and the woman -- who cannot be identified -- testified that the witness told them about the alleged conversation, Mr. Fernyhough said.

Mr. Fernyhough urged the court to accept the testimony of those who said they discussed the incriminating conversation with the witness.

"This is simply another attempt by [the witness] to mislead the court to bolster his credibility by denying any possibility of collusion between himself and two other key Crown witnesses," Mr. Fernyhough said.

Mr. Fernyhough also said the witness had "a very strong motive" to fabricate the evidence.

He wanted part of the $1-million reward for information leading to a conviction in the Air-India case.

He also was looking for revenge against Mr. Malik, who he believed had cheated him out of a significant amount of money, Mr. Malik's lawyer said.

The defence lawyer questioned why the witness said nothing for 12 years about the incriminating conversations.

Presumably, the witness believed Mr. Malik was involved in the conspiracy responsible for the bomb explosions.

Also, the witness would have realized if he had done what Mr. Malik asked him to do, he would have been one of the passengers on the airplane that was blown up, Mr. Fernyhough said.

"He'd have you believe he went to police because his conscience pushed him to do it," the lawyer said.

But he did not explain why it took 12 years to develop a conscience, Mr. Fernyhough said.

The witness also told the court he maintained a fairly close relationship with Mr. Malik in the years immediately after the Air-India disaster.

The witness and Mr. Malik were involved together in community institutions and Mr. Malik helped provide financing for a property purchase by the witness, Mr. Fernyhough said.

"These are not the actions of a person who was struggling with his conscience," Mr. Fernyhough said.

The defence lawyer said their relationship began to deteriorate in 1990 in a dispute over money.

The witness went to police when he reached a breaking point in the escalating dispute.

"It seems a rather startling coincidence that his conscience pushed him to go to police on the very same day he threatened [to beat up] Mr. Malik, and one week after an article [in a Punjabi-language newspaper] reminding readers of the reward," Mr. Fernyhough said.

The defence lawyer urged the court to find that the witness never had the conversation he alleged he had with Mr. Malik.

The witness fabricated an account of a conversation because he saw an opportunity to get back at Mr. Malik and get some money that he thought he was owed, Mr. Fernyhough said.

Mr. Malik and co-defendant Ajaib Singh Bagri are charged with the murder of 331 people killed on June 23, 1985, in two bomb explosions on opposite sides of the world.

Prosecutors allege Sikh terrorists, seeking revenge against the Indian government, put the bombs on planes in Vancouver connecting to Air-India flights.