Thursday, December 11, 2014

Tivoli COE: Some Churches not into Accountability?


  • Are some Churches unconcerned with those responsible for the May, 2010 military operation which inter alia resulted in the deaths of more than 76 persons?
  • Are some churches primarily concerned with the state paying compensation for the damage and loss suffered by the residents of Tivoli?

In a letter to the Editor, Gleaner, published Thursday, December,11, 2014, written by the Rev. Orville H. Ramocan, Director in the Office of the President, Independent Churches of Jamaica (ICJ), the position of this group  on the Tivoli Commission of Enquiry is stated:

"ICJ believes that whoever was responsible for the physical violation of these poor people is irrelevant at this point in time. The reality is, the conditions and cause for these violations were created by the State. The State must now make every effort to bring healing and restoration to a community that has experienced much suffering. If this enquiry is not about helping the victims to pick up and start over with some sense of dignity, then the exercise will mean nothing to them."

One fully recognises that any grouping in the society has a right to select and advocate any position that its membership so desires. The ICJ is rightly concerned with the lives and welfare of the victims of the military operation in Tivoli in May 2010. 

  1. We submit that the matter of state compensation is not a matter to be investigated and settled by the Tivoli COE as presently constituted.
  2. The claims submitted need to be investigated in a manner similar to that undertaken in processing claims on insurance companies.
  3. The public airing of estimated and primarily unsubstantiated claims and the recording of such by the Commissioners gives rise to the expectation that, without more, such claims will be settled by the state in toto and promptly.
  4. The claimants making public their financial predicament open themselves not only too the tax authourities ( formal & informal) but parasitic elements who will demand a "cut". 
  5. The then Public Defender had indicated that the written claims submitted/collected were being processed by a cadre of volunteer attorneys. We are of the view that this is a most suitable mechanism in light of all the circumstances.

Surely the ICJ cannot be of the view that whilst the matter of financial compensation is addressed then that it the end of the matter. From the evidence so far , the state sought to make some redress-- although insufficient to rehabilitate the victims. Given the constrained financial space the GOJ finds itself, is it likely that the recommendations for the payment of financial compensation can be settled in the near future? Is there an obligation imposed on the GOJ to fully investigate such claims before allocating taxpayers' money? Are all losses incurred at during the incursion attributed solely to the state agencies?

Why are "the persons responsible for the physical violation of these poor people irrelevant" at this or any other point in time? In the view of the ICJ when, if ever, will " whoever was responsible"  be identified and held to account?  If the state can damage , violate and repay, then what is to prevent a recurrence of the said actions? The ability to pay?






Wednesday, December 10, 2014

Tivoli COE: Tivoli's Audacity to challenge the JDF

" In the end, the incursion into Tivoli played out like a well written movie script. The army surgically wrestled the community from the grasp of the criminal elements that had imprisoned its residence and had the audacity to challenge the government and by extension, the law enforcement agencies of the state."

That is an excerpt from a book written by a former JDF Officer, Major Stanley P. Ford ( Ret) entitled "Core Values : A Soldier's Story". Interestingly, the Introduction is by
  
Stewart Saunders Major General (Retired ) CD, JP, MSc, psc 
Chief of Defence Staff 
Jamaica Defence Force 
21 January 2012

 The view expressed by Ford must be given tremendous weight; and to some extent reflects the perspective of those in the officer corp of the JDF at the time. The then Chief of Staff would have sought the correction of any egregious error in any account of what was a catastrophic exercise. In fact Saunders reinforced the veracity of the account given by stating:

" This work gives a highly factual account of military service and the story is told with passion and humour."


  • Will the Tivoli Commission of Enquiry get around to exploring this perspective and investigate how such may have influenced the treatment of the remaining residents of Tivoli ?
  • Before the deployment of troops, were they advised that they were about "to go to war in Tivoli and some might not return"?
  • Was The JDF full mobilized and put on a war footing for the  Tivoli Gardens incursion?


The most disconcerting of the quote is that "the incursion into Tivoli played out like a well written movie script." It will be interesting to ascertain exactly who were the "scriptwriters", "main actors", "supporting cast" and the "games played" that ultimately involved the death of more than 76 persons.

Let us view closely the "screen credits."



Tuesday, December 9, 2014

Tivoli COE: Full Disclosure and Inquisitorial Approach needed


The following in the unedited version of a letter written by (Ret.) Col. Allan Douglas which was published in the Jamaica Observer, Tuesday, December 09, 2014 titled "Not too late to salvage integrity from Tivoli commission"

Dear Editor,
With the commencement of the Tivoli Commission of Enquiry into the shooting deaths of 76 Jamaicans by the security forces in May 2010, the Jamaican Government faces one of its biggest tests in terms of integrity, transparency, and ensuring the just and equitable administration of the law. However, early indications are that the commission could easily turn out to be a farce, and that the hopes of Jamaicans that the government will ensure a just and meaningful outcome through an impartial investigation by the Tivoli COE could end up in tatters.
For the past several months, in letters to this newspaper, I have called for a fair and just investigation into the events that happened in May 2010. Along with several other Jamaicans, our call has been primarily for transparency, honesty, impartiality and integrity.
But at this early stage of the Commission I fear that these calls may not be heeded. And if they are not, the government and the security forces will undoubtedly lose credibility and the public’s confidence in the rule of law.
It is now obvious that the COE has been set up to conduct its business in an adversarial manner instead of an inquisitorial one, which is the global standard for commissions of enquiry of this nature. The adversarial format is of course associated with normal court trials. It therefore appears that we are in for a legal contest between opposing parties, and the commissioners at the end of the day will have to rely on only that evidence provided by the opposing lawyers or parties, and then decide on who has won the legal contest, possibly without establishing the truth! At present,  it seems the legal contest is seriously lopsided or has been muffled.
I believe it is not too late to change the format of the proceedings into an inquisitorial tribunal, and would respectfully urge the distinguished and experienced chairman to seriously consider this proposal. After all, the point of the commission is to unearth the truth behind the events that caused the deaths of 76 Jamaicans and how to prevent a recurrence.
I would also encourage the present leadership of the JDF to preserve its legacy of transparency and truthfulness, even under the most difficult conditions, by turning over every single bit of evidence and ensuring that any evidence that has been unearthed in investigations to date be presented to the commission as soon as possible.
I will continue to maintain that an impartial and independent outcome of the Tivoli inquiry would ensure the public’s future confidence in the  JDF as a responsible, ethical force that puts its people’s interests before its own. In this regard, the JDF’s attitude to the proceedings is of paramount importance. Any attempt at deception or cover-up could end up in the loss of credibility and trust many Jamaicans still have for their military men. Forget about the loss of ‘friends’ because you stood up for transparency and truth, because in old age the best friend you can have is a conscience you are able to live with!
I appeal to the Chief of Defence Staff (CDS) of the JDF, who I know to be an honorable man, to disclose to the COE whether he or any of his officers made the alleged remarks prior to the Tivoli incursion of May 2010 that “…the problem with these people and Jamaica, for that matter, is that they have never really seen the JDF on a war footing, fully mobilized and in action..” and “…tonight we go to war in Tivoli and some of you might not return…” Given the training of the JDF and the situation existing in Tivoli, it is important to establish the veracity of these alleged remarks, and if they were made, whether they had a bearing on the tragic outcome of the operation.
If the hair on the head of one innocent civilian, whether he refused to be evacuated or not, was harmed due to so called “collateral damage,” then the JDF has a responsibility to declare that the operation was a failure or was ill-conceived. I am not aware of the police training doctrine, but I beseech the JDF not to allow its lawyers to advance the argument that Tivoli had been well barricaded and the people were armed to the teeth with all manner of high-powered weapons, and that embedded ‘terrorists’  were going to fight to the last man, woman and  child. I also aver that it was acceptable for the troops to conduct themselves in a manner that was contrary to military doctrine and training. To suggest that the JDF had no other choice but to storm into Tivoli, remove the barricades and ‘recapture lost territory’, in the process killing 76 civilians, is as frivolous as it is tragic. To me as a military man, seeking justification for killing women and children because they were being used as human shields by gunmen is sick.
I know that most military forces, including the JDF, are trained to deal with scenarios similar to the one in Tivoli. The nature of that type of operation calls for great restraint and discipline and there is no “storming Norman” “shock and awe” solution for that type of operation. In addition, it calls for good intelligence, sound planning, and meticulous and disciplined execution with well-trained and well-led troops. Likewise, whereas lawyers and the civilian public might accept that firing mortars as a deception or diversionary plan might sound quite acceptable, to a trained military person such actions in a built-up urban area are irresponsible and unthinkable. 
It is very important that in this relatively young country the integrity of our institutions be preserved and strengthened. Integrity, however, can never be preserved in Jamaica if our fledgling institutions are not held up to close scrutiny/investigation and publicly made accountable for their actions. I know, for instance, that many regard public institutions as some sort of sacred cow, and that criticism of these institutions, especially by serving or former members, is perceived as an act of disloyalty. I hold no such apprehension, and maintain that those who condone or wish to cover up some misgivings are in fact being disloyal to such institutions because, ultimately, the very fibre of the institutions they mistakenly seek to protect will be weakened due to the loss of integrity.
If we truly love and value the future of our country, we must demand full disclosure. We should dismiss any scenario in which the truth is camouflaged by the persistent assertion that “for security reasons information cannot be provided.” We know that’s a lot of rubbish, and once again, such an assertion should be treated as nothing less than an expression of disloyalty that is not in Jamaica’s security interests. This inquiry, therefore, should not put individuals on trial or subject witnesses to humiliation and intimidation, but unequivocally and transparently seek the truth. Here is a wonderful opportunity to instil the public’s confidence in inquiries of this nature by conducting it with integrity and objectivity, and not merely follow the usual pattern of two opposing legal teams waging war against each other, while the majority of disenchanted Jamaicans look on in disgust.
Yours faithfully,
Colonel Allan Douglas

Saturday, December 6, 2014

Tivoli COE: Fault in Focus


We are of the considered opinion that the Tivoli COE should be state-centric rather than victim-centric. By that we mean that the focus should be concentrated of the activities of agents of the state in the debacle and not the welfare of the victims. This might appear cold and indifferent to the trauma and agony resulting in the deaths of 76 or more Jamaicans allegedly at the hands of agents of the state.

In support of that position we contend that the process of discerning the" truth" is probably best dealt with in three (3) distinctly different spheres:

       1. There needs to be a forum in which victims and eye-witnesses  can tell their stories as how they remember it and in their own words. They would do this in groups of their peers who were in close proximity at the material time. Such would facilitate some "correction" and the filling in of blanks in the memory. This exercise would allow them to vent, receive counseling, and ultimately assist in the healing process.

No attorneys should be present.
  
Only those trained in the appropriate skills should assist in eliciting the information So there would be psychologists, psychiatrists, social workers, clergy, mediators and the like.
These sessions could be recorded and analysed by those with the appropriate training and experience. 

         2. The matter of compensation is foremost in the minds of those who have suffered loss/damage to property, incurred expenses directly as a consequence of the invasion/siege/ armed conflict ( eg medical expenses), and loss of income due to personal injury or restricted movement.

The validity of such financial claims would be subject to the investigation done in processing insurance claims. Such is not conducive to public hearings or public cross examination by Attorneys. The attorneys would be involved after the investigatory work has been concluded.

The Public Defender in the Preliminary Report referred to  such work being in progress with a cadre of volunteer attorneys processing the submitted claims. This needs to be expedited and not replicated by the Tivoli COE.

Indeed not only should the Chairman make it abundantly clear to witnesses in the enquiry but should prevent Attorneys from pursuing that line in examination in chief or cross on the basis of not being relevant.

              3. There needs to be an meticulous investigation into the role of state agencies during the TG episode.
 Since it was a military operation  the activities of JDF should be the central focus of the Tivoli COE.
There is need to expose the role played not only be the security forces but also agents from the Ministries of Health, Labour & Social Security, National Security, the ODPEM, the JCF. The operational assistance by foreign agents must be clarified.

Emphasis should be placed on the information that informed the decision- making process, the operational aspects--its failures & successes. The decision makers  and operational officials should be called upon to account.
Documentary evidence must be made available with the appropriate "National Security" considerations. 

A COE is the appropriate mechanism to ferret out this "truth". The Tivoli COE must call upon the then Public Defender to justify his published findings and facilitate his responding to the JDF elucidation  of those misunderstandings, misinformation, and erroneous conclusions.

From the state-centric perspective, the aim is to mitigate, as far as is possible, any recurrence of this debacle. 

Tivoli COE: Confounded, Convoluted or Confused?

The Tivoli COE has ended its first week of sittings. Some interesting observations:

* Having advertised for witnesses to come forward and give statement to the Secretariat, the Chairman is faced with an unexpected flood of potential witnesses--anxious to tell their stories. 

There are powerful motivational factors at work:  the extensive media coverage ;  the impression that such appearance will put their financial claims in good stead; the need to bring to public attention the trauma suffered and the hesitancy of the state in making compensation; the physical destruction remaining as a constant reminder.

The Chairman is of the view that all the witnesses cannot be accommodated within the 3- month limit. Hence there is the need for an extension and supplementary budgetary allocation.

*The situation is further compounded by the COE not displaying a sense of urgency.

Originally, it appears that the sittings were to be spread over a longer period  but totaling some 12 weeks, Moreover, the Attorneys have indicated, and the Chairman has accepted, that sittings should commence at !0:00 am ( instead of 9:30 am) and end on Fridays at 1:00 pm ( instead of 4:30 pm ). There is no work to be done on weekends or in the nights,

The rationale is that the Attorneys have to attend to office business before they attend sittings and moreso on Friday afternoons. It can be suggested that there is no hurry as the GOJ has waited over 4 years---much shorter than the Guyana COE into the death of Walter Rodney.
There goes the whole idea of "Flexi-workweek".

*There has been an over reliance during cross-examination on inconsistencies, omissions, contradictions, and damning revelations in recent witness statements. This has been highlighted to cast doubts on the credibility of the witnesses.

There is the subterfuge that the earlier statement was indeed true as the events would have been fresher and the most important elements would have been recorded sooner rather than later. The legal terminology is "recent fabrication" occasioned by malice, greed, fraud, ill- will, partisan politics and the like.
To make matters worse, the Attorneys are not even accepting the "truth" of the earliest statements, Neither have they presented the "truth" of what occurred, according to their clients" instructions. In reality, the cross-examination is  destructive in the sense of attacking the veracity of the witnesses and not concerned with ferreting out the truth.

There is the presumption that cross examination of traumatised individuals after some 4 years will somehow assist in discerning what exactly they experienced.  Attorneys are not equipped with the skill set required to elicit such information from these victims.

*One cannot help but wondering if the Chairman has made it abundantly clear that this COE is not concerned with authenticating the various financial claims that have been made.

*Given that the Tivoli intervention was primarily a military operation, one would have expected that the military operatives would have been the first to give their account. The JDF Report ought to have been published prior to the start of the hearings of the Tivoli COE.

Having opted not to do so, then it would have been appropriate for the Chairman to request that Security Forces place their cards on the table at the start of the proceedings.  

The JDF has "dissed" the account contained in the Preliminary Report of the then Public Defender stating publicly that it contained "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analysis" (  see Tivoli COE: JDF vs. The Public Defender )





Monday, December 1, 2014

Tivoli COE: Terms & Conditions For Enquiry



Set Up Three-Month Enquiry For Tivoli - Ashley

Published: Tuesday | May 14, 20137 Comments
The following was published in The Gleaner on May 14, 2013. 
We have taken the decision to post it on Dec 1, 2014 -- the commencement of the Tivoli COE.

Ashley




















Edmond Campbell, Senior Staff Reporter
ATTORNEY-AT-LAW DR Paul Ashley is of the view that under colonial rule if "76 mongrel dawgs and a puss" had been killed, a commission of enquiry would have been promptly established, let alone 76 humans.
His comments come as the Portia Simpson Miller administration mulls decisions on the terms of reference for the proposed enquiry and the selection of commissioners to carry out the task.
Ashley, in a Gleaner interview yesterday, suggested a panel of three commissioners headed by a retired judge.
The attorney wants a deadline of three months to complete the enquiry and noted that the panel should be allowed to submit an interim report before completing the final document.
To avoid delays and possible cost overruns, Ashley said the enquiry should be conducted in the mornings, nights and weekends if necessary.
In terms of sequencing, the attorney suggested that the enquiry start from the surrender of former Tivoli Gardens don, Christopher 'Dudus' Coke, to the Keith Clarke killing, and then to the Tivoli operation.
However, Ashley made it clear that there was no need to reinvent the wheel in terms of Public Defender Earl Witter's extensive report.
"The commission of enquiry should not attempt to retrace or replicate the work of the public defender," Ashley said, adding that it should complement his investigation.
avoid culpability
He cautioned that the proposed commission of enquiry should avoid delving into the culpability of members of the security forces in relation to persons killed during the operation.
"We don't know who shoot who. The only way we can get this information is via the forensics. The proposed commission of enquiry must avoid trying to go into the culpability based on forensics because the forensics are not yet in," he said.
He pointed out that matters dealing with criminal culpability should be turned over to the DPP.
Ashley wants the focus of the enquiry to be state-centric, looking at the options considered by the decision-makers, the intelligence informing such decisions, the challenges real or imagined faced by the security forces and the operational imperatives.
"The ultimate aim is to ensure that appropriate mechanisms and systems are put in place to mitigate as far as is possible any recurrence of this debacle," he added.
edmond.campbell@gleanerjm.com 
Ashley's critical queries for the Tivoli commission of enquiry
What factors prevented the apprehension/detention of Coke even as a suspect?
Could Coke have been apprehended outside of Tivoli before the decision was made to extradite him?
Was the blunt Tivoli intervention the only option considered?
What intelligence information determined the manner of the assault?
What factors informed that decision and what was the intelligence?
What was the role of the United States in providing surveillance?
From how early was the so-called US spy plane here, and did it operate before May 24 when the Jamaican Government formally requested its intervention?
Was Christopher 'Dudus' Coke tipped off and by whom?
Did the security forces track Dudus from Plantation Heights right into Tivoli and could they have stopped him?
Could the massacre have been prevented?
When were the security forces informed that Dudus was no longer in Tivoli and did they have any means of tracking him to where he went for refuge?
Where was Dudus tracked to?
Was Dudus provided safe housing?
What was the ongoing relationship between Rev Al Miller and the security forces?
What were the mechanisms and arrangements for detainees and processing?
Were they treated in a humane fashion and what were the monitoring mechanisms and supervisory roles and functions and who were in charge?
Did the state provide medical assistance where necessary?
Did the state implement measures to secure property in Tivoli?
Was there pillage by the security forces?
What factors account for the non-response to the Keith Clarke's wife's call for help on 119?

Friday, April 25, 2014

Tivoli COE: Publish JDF Report on Tivoli

The Jamaica Defence Force has a duty to the people of Jamaica to publicize the truth of its operations in Tivoli Gardens in May 2010.That inconvenient truth ought not to wait on the announced Commission of Enquiry to provide a forum for its promulgation.

Since May 2013 the Jamaica Defence Force (JDF) has stated categorically that the Interim Report tabled  by the Public Defender contained  "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" 
The Gleaner, Monday, May 6, 2013

The JDF is a professional organisation that enjoys a special place within public confidence. It is duty-bound to maintain that position. It is imperative that  the JDF places its record in the public domain to, at the very least, provide an alternative to that posited by the public defender concerning its operations in the "Tivoli incursion/siege". Currently the public has only that Interim Report  detailing some of the events that garnered international publicity and ultimately precipitated the fall of the incumbent political administration.

In short, the JDF must make its criticisms of the Witter Report public; documenting the unsubstantiated allegations, identifying the misrepresentations and presenting  better informed analyses. Nothing less will suffice.

The JDF cannot now seek the cover of the "SECRET" classification or the "national security interest" umbrella. It needs to provide detailed substantiation.
   
                                         Curtailing the Circus

Media coverage of the proceedings of a Commission of Enquiry can attract  a captive audience enthralled by the cameo performances and the courtroom drama. However, there is a huge financial cost and the forum is not conducive for incisive analysis.

The tabling by the JDF of its  detailed response to the Public Defender's will provide  very important background information that will have a direct bearing on the conduct of the COE. It will save time and expense.

The provision of such a Response ought not to be a challenge. 

  • The then Chief of Staff is now the Permanent Secretary, Ministry of National Security. As such he is the defacto Permanent Secretary, Ministry of Defence .
  • The Prime Minster is the Minister of Defence
  • All sensitive national security matters have to receive special clearance from the duly constituted authourity
  • The presentations by the JDF before the Tivoli COE would have to receive such clearance in advance.
It is suggested that the process be implemented now as the delay must involve, inter alia,   deterioration of the public confidence in the JDF as the positions enunciated in the Public Defender's Interim Report become more difficult to correct, adjust or dispel.

Tivoli COE: JDF vs. The Public Defender

A showdown looms between the Jamaica Defence Force(JDF) and the Public Defender. The battle lines are drawn.

The Public Defender has tabled in Parliament its Interim Report on the "Tivoli incursion/siege". That has been the subject of discussions in the local and international media, the choice topic of social media and is available on the GOJ Parliament website.

The JDF has not officially responded to the adverse findings contained in Witter's Report. Indeed Earl Witter had led the public to expect a Final Report. However he has since retired and the only question is whether or not he has "packed up taken his marbles with him".

The JDF has thrown down the gauntlet and signaled in no uncertain terms the approach it intends to adopt during the Tivoli Commission of Enquiry:

"The JDF, meanwhile, said that it welcomed the opportunity to respond to "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" in the public defender's report."

                                     Command Performance      

Before making public such a damning statement, the JDF-- being a professional army-- must have:

  • Read, studied and analysed in meticulous detail the Interim Report
  • Identified the areas of adverse findings concerning its operations during the Tivoli incident
  • Retrieved its documentary records and researched its files in order to substantiate its positions
  • Carefully considered the implications for  public confidence, if indeed it should fail to deliver on its promise 
The Office of The Public Defender is not likely to issue a Final Report in light of the numerous personnel changes in the recent past. The impression was that the Interim Report was that of Earl Witter.  Indeed , if in the very unlikely event that a Final Report is tabled in Parliament, it would only annex the long awaited Ballistic Reports.

Given the looming showdown it would be advisable that the Office of the Public Defender set mechanisms in place to "defend" its adverse findings against the JDF.The showdown promises to be dynamite for live media coverage, streaming to the international audience and gist for social media.

Lawyers will be acutely aware of the media coverage. They will make sure that their presence is duly seen. Apart from carefully orchestrated interventions,special care will be accorded to sartorial elegance. 
[My friend Victor Wilson, the bespoke tailor, could do with the increased business.]

But the circus can be curtailed.


Thursday, April 24, 2014

Tivoli COE:That JDF Welcome

The Tivoli "incursion/siege" was a military-driven operation. That is another way of stating that The Jamaica Defence Force (JDF) played the central role in the planning and implementation of the exercise. It follows that any investigation into the armed confrontation between the civilians and members of the Security Forces must involve analysis of the veracity of the information informing the strategies which were considered,the options which were available, the factors informing the decisions taken, as well as the the nuts and bolts of the actual operation carried out.

 The need for unbiased military expertise cannot be disputed. What is subject to debate is the formal role to be accorded to such skill set. Our position is that should be accorded the position of Commissioner reflecting the importance and centrality of such to the Commission of Enquiry aimed at unearthing the truth, irrespective of its inconvenience--political and otherwise. Others are of the view that such expertise can be made available to the COE to advise the Commissioners.

 We would counter arguing that such expertise would incur a substantial financial cost, unless underwritten by a "friendly"  foreign government or institution.It would be financially prudent not to incur the cost of a Commissioner in addition to that of the unbiased military expert.In sum, the GOJ should seek the services of such an expert and appoint that individual as the replacement for Velma Hylton QC.

 With an announced budget of JA$100M,the GOJ is obliged to get value for the tax-payers' money. The general public is very cynical of the motive, timing and possible outcomes of yet another Commission of Enquiry.

The Security Forces have welcomed the proposed COE. That welcome was in early May 2013.It will be soon the first anniversary of the announcement and there is yet to be any indication of the commencement date.[Note: Guyana Government announced a COE into the death of Walter Rodney some thee decades after the event]

 The reported welcome by the Jamaica Defence Force (JDF) leaves little doubt as to challenge ahead.
The Jamaica Observer, Tuesday, May 07, 2013 :

"The JDF, meanwhile, said that it welcomed the opportunity to respond to "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analyses" in the public defender's report. 
 "These (allegations), if left without rigorous and objective investigation, may give the wrong impression of the force and the men and women who put their lives at risk for their fellow citizens daily. We support the decision, therefore, as we believe that such a commission of enquiry will be conducted with the appropriate rigour and objectivity that will shed light on the facts, and help to paint a true picture of the circumstances surrounding the May 2010 operation," the army said in a statement. 
 The JDF added that it was confident that the May 2010 internal security operation could stand up to objective scrutiny, and that it looked forward to the commencement of the commission of enquiry."

Wednesday, April 23, 2014

Tivoli COE: Unbiased Military Expertise Needed

In an earlier post we posited Some Preliminary Concerns regarding the proposed Tivoli Commission of Enquiry.
With respect to the skill set of the panel of commissioners we noted the clear need for "a foreign security expert with specialized training/ experience in intelligence gathering & analysis, surveillance, and urban armed confrontation."
We argued that the exercise in Tivoli was a military operation and no doubt the security Forces are anxious to tell how they saved Jamaica, acted with considerable restraint and in so doing prevented the escalation of fatalities.


"The questioning and analysis of the operations conducted by the Security Forces in Tivoli has to be the central focus of the COE. It cannot be a public relations exercise aimed at restoring the public's confidence in the Security Forces in general and the Jamaica Defence Force in particular."


We post the original letter by Colonel Allan Douglas to the Observer : an edited version of which was published on Wednesday, April 23, 2014 under the heading  "The tale of two Tivolis"

Dear Editor,

I have just had the opportunity of reading thoroughly the Public Defender’s Interim Report to Parliament concerning“investigations into the conduct of the Security Forces during the State of Emergency Declared May 2010-West Kingston/Tivoli Gardens”. For an interim report, I found it very comprehensive, albeit very disturbing and worthy of careful study, especially before the start of the long-awaited Tivoli‘incursion/siege’ inquiry. Hopefully this interim report will help the commissioners of the enquiry better understand the real issues that need to be addressed – issues that have caused much public concern over what was primarily a military-driven operation.

The report reveals two very clear and different accounts of the events that took place in May 2010 in Tivoli Gardens, which resulted in what the report terms as “…the greatest independent Jamaica loss of life in a Single State operation in independent Jamaica: seventy-six (76) civilians and one (1) soldier.”

The security forces’ position is likely to be that they came under sustained gunfire from snipers and gunmen behind a well-barricaded Tivoli Gardens and that they returned fire. Further, that they provided every opportunity for law-abiding citizens to leave their homes under comprehensive arrangements for their safety elsewhere before the start of operations. They will also point out that mortar or mortars were fired at open lands or space as part of a diversion or deception plan and that the mortars were expertly handled and not aimed at built-up areas or civilian dwellings. The claims of ill-treatment of over 1,000 detainees will be dismissed, of course, and they will claim that the military couldn’t be expected to provide five-star treatment or three square meals over and above bread and water and ablution amenities to suspects or possibly armed combatants. All claims of beating will be sternly denied and allegations that suspects were transported along with dead bodies will be met with the rhetoric that, given the fluidity of the situation and the ‘fog of war’, this was the only option open to them. Accusations of leaving the decomposing bodies of civilian dead lying in the roads will probably be met by claims that whenever they tried to remove these bodies, they came under sniper fire. In summary, the security forces will claim “no wrong”.

Civilian accounts will claim that soldiers fired at unarmed civilians when there was no real threat to the soldiers, and that members of the security forces meted out cruel and brutal treatment to the civilians and damaged or destroyed their property.

It is in the interests not only of the future of the Jamaica Defence Force, but certainly the country itself that the inquiry determines the level of so-called ‘resistance’ that came from behind the well- ‘defended’ or fortified Tivoli during this operation. How many of those killed, for instance, were firing weapons? As the Public Defender has so correctly pointed out, the ratio of killed civilians to weapons recovered raises serious doubts and questions. We hope the security forces will be forthcoming with the amount of rounds they discharged during this operation and weapons recovered, and if any were taken from dead civilian “combatants”.

We certainly need to know more about the firing of mortars aimed at “open spaces”. What or where were these open spaces? Who or what types of mortars were employed and who are the “experts” who fired these weapons; what was their training and when was the last time they had fired these weapons using live rounds? Was the training conducted locally, and if so at which range? It is important to reveal the truth behind what appears to be the reckless use of an indirect fire asset, a mortar. I cannot understand how the use of mortars could have been sanctioned, given the nature of the threat and the proximity to the civilian population and built-up areas.

Above all, we sincerely hope this Commission of Enquiry will uncover the real nature of the Tivoli operation. Was it some sort of counter-insurgency operation, or was it an operation to assist the police against gunmen and criminals? Or was it a warlike mission, before which a commander of the JDF told his troops , “…tonight we go to war and some of you might not return…”? Determining which of these categories of military operation our troops were engaged in at Tivoli may explain whether these events will be conspicuous in military annals of how not to do it, or be recorded as one big disastrously botched operation, lacking in leadership and concern for human life. It is my respectful recommendation that an unbiased military expert be employed to advise the commission on military matters.

Finally, the public defender should be commended on a good interim report, and his reference to the British BloodySunday massacre proceedings is relevant. The Commissioner of the Tivoli inquiry would hopefully study the respective reports of that inquiry to avoid committing similar mistakes made by Lord Widgery, who chaired the first BloodySunday inquiry.
Yours faithfully,

Colonel Allan Douglas

Monday, April 21, 2014

Does The Prosecution "Deserve" The Right To Appeal?

The case for legislating the Prosecution's Right To Appeal Against An Acquittal In Criminal Cases  in Jamaica has been ventilated in a document emanating from the Office of the Director of Public Prosecutions.Like any other case, the arguments presented have to be assessed before any conclusion can be made concerning the desirability,and/or appropriateness  of such in our judicial system.

In a letter entitled "Prosecution Deserves Right To Appeal" published in The Gleaner, Saturday, April 19, 2014 Glenn Tucker states, inter alia, "asymmetry twists the criminal procedure towards the interest of defendants".

 For what it is worth, that argument is hinged on two questionable predispositions: (a) the DPP's concern stems from the fact that the judge could make a error in law and where that exists, the matter should be revisited; and (b) there should be freedom from bias against both the defendant and the prosecution.

Let us examine briefly the position of the Prosecution "deserving" such a right.


  • Judges make errors in law every day and this forms the basis of appeals. However, it is the convicted who must make such an appeal and stand the attendant costs. If the judge makes an error in law and the convicted does not take the initiative and appeals, he serves his time or pays his fine. 

Suffice it to state that the DPP's concern stems from a multiplicity of factors and is not confined to the error in law.(see our "The Prosecution's Right To Appeal")


  • The much touted adage of the scales of justice being evenly balanced is more myth than reality. It is the state that promulgates the laws with accompanying sanctions for violations; recruit, pay and equip the police force to apprehend violators: select the judges; establish and maintain (poorly) the court houses and prisons; collect the fines; and maintain the criminal records. Appeals are made to a panel of judge selected and paid by the state. Interestingly, the majority of judges have spent time in the prosecution's office and see their career path as culminating in the Court of Appeal. Appeals from the RM courts depend on the notes taken by the sitting trial judge.  

It may be agued that attempts have been made in the recent past to lessen the imbalance in favour of the state usually under the rubric of "Human Rights" and with the aid of foreign intervention. 

Given that there seems to be implementation hitches, then it seems reasonable to take a position that there should be a phased implementation of such a right based on the addressing of the myriad of problems besetting the administration of justice, especially in the criminal jurisdiction. The supporting infrastructure is woefully absent.

The Prosecution having very limited and circumscribed right of appeal has been rejected by the DPP on the basis "that no useful purpose is served to law and justice'".


Sunday, April 20, 2014

The Prosecution's Right To Appeal

The right of appeal by the prosecution against an acquittal in criminal cases has been placed once again on the front burner of public discussion by the learned DPP, Paula Llewellyn QC in the aftermath of the Kern Spencer acquittal in the "Cuban Lightbulb Trial". The DPP has not shirked from declaring publicly that the Senior Resident Magistrate made "an error in law" by upholding the no- case submissions.

In a document dated October 7, 2013 the Office of the Director of Public Prosecutions put out its case for the Parliament to legislate such a right.. It is a very detailed document citing legal cases in support and giving quotations from eminent juris. To those unschooled in the law, this is heavy stuff--liberally infused with an overabundance of legalese.

In this post we attempt to faithfully summarize some of  the main positions enunciated. We do so without indulging at this time in any assessment of whether the prosecution in Jamaica "deserves" such a right.


  • Neither the Constitution nor the Criminal Justice (Administration) Act confer in express terms any right of appeal on the Director of Public Prosecutions.
  • The rights of the prosecution are limited to only those conferred by virtue of s.35 of the Judicature (Appellate) Jurisdiction Act which allows for the DPP to appeal decisions of the Court of Appeal on very circumscribed grounds,to wit,  a point of law of exceptional public importance
  • The 2010 amendment to the Bail Act also confers a right of appeal to the Crown against the grant of bail.
  • Our regional neighbours: Trinidad & Tobago, Belize, Cayman Islands and Dominica,  to varying extents, have instituted the prosecution's right to appeal under specified circumstances.
  • The prosecution has no right of appeal in circumstances where:-

[1]   the judge makes an erroneous ruling adverse to the Prosecution

[2]   where the verdict of the jury is perverse and unreasonable and goes against the weight of the
        evidence and common sense

[3]   where the judge [shows bias towards the defernce] and does not give the prosecution the proper 
        consideration and where they have at times forced the prosecution to throw out cases

[4]   where verdicts have been procured by actions designed to pervert the course of justice.



Monday, April 14, 2014

Tivoli COE: Ballistic Testing Priority

The GOJ has announced a budget of $100m for the Tivoli Commission of Enquiry; in addition to identifying a replacement for Velma Hylton QC. However, whilst the the candidate's name has been forwarded to the Leader of the Opposition in the "consultation ritual", there is still no indication of the proposed start up date.

Of course it will be argued that such will depend, in part, on the availability of the Commissioners, the supporting staff, as well as the outstanding ballistics report - which its is said to have bedeviled the now retired Public Defender.

Interesting the tension between the Office of the Public Defender and the Independent Commission of Investigation (INDECOM) as to the apportionment of blame for the delay seemed to be resolved with the former (probably as a departing gift) sending copies of some 42 files to the latter (without the public being given any reasons).

These constitute the set that-- in the view of the Public Defender after analysing the respective post- mortem reports, along with other information gathered--- death could have been the result  extra-judicial killings by the members of the Security Forces involved in the operation,

                             Concern:   The Priority

It has been reported that at least 76 persons were killed during the operation.  Only some 42 have been identified by the Public Defender as possible " extra- judicial killings". Hence INDECOM has decided to "prioritize" the testing to those 42, citing the cost involved, plus the possibility that the tests of the others may not provide any useful information.

 The ballistic report has the potential for establishing scientifically from which weapon the fatal bullet was fired. The validity of the report depends to large measure on the integrity of the material collected, the conditions of its storage, the tests conducted with the weapons submitted for testing.

With so many variables are involved it is very likely  that some tests will prove "inconclusive" Given that 34 cases have been excluded before the comparison testing and assuming say a 50%  confirmation, then what the public is left with is a possible 21 cases linked to the Security Forces---a far cry from the reported 76-- a figure that has been said to be grossly underestimated.


  • Is that to be explained/dismissed as "collateral damage"?
  • What is the inference to be drawn regarding the 55-- which are not prioritized or tested "inconclusive"?
  • What scientific analysis will be undertaken of those 55?
There lies the possibility of a big "let down" in the eyes of an already cynical public.

The ballistics must be accompanied by the post-mortem reports. It is the latter that will provide the critical information surrounding the circumstance under which the 76 met their deaths.
With the passage of time eye witness evidence becomes increasingly unreliable. Greater reliance has  to be placed on scientific and documentary evidence.
Any sincere attempt to unearth the truth must take into account both the ballistic reports and the post- motems. The latter have been completed: we await the former with an informed expectation.





Thursday, April 3, 2014

Kern Spencer Trial: The Ruling


The Resident Magistrate Court is not a court of record i.e. there is no court stenographer recording verbatim the proceedings of the trial. In case of an appeal, reliance is placed on the notes compiled by the sitting Resident Magistrate.

Not having access to the RM's notes, resort has to be made by that recorded by one or both parties.
Below is the "transcribed verbatim by a member of the prosecution's team".

We have no way of attesting to the veracity of such ; and its posting is primarily to complete the picture--having published both No Case Submissions and the Crown's Response.


R v Kern Spencer and Coleen Wright
Ruling of  on Application for Permanent Stay of Proceedings and No Case Submission
Her Honour Ms. Judith Pusey states:
“No case submission was made by the defence and an application for the stay of the proceedings on the basis of delay and prosecutorial misconduct.
The credibility of Rodney Chin was put in issue.
In this case the Crown is relying on circumstantial evidence.”
(The Senior Resident Magistrate cited the well-known direction from Lord Parker’s Practice Note [1962] 1 All ER 448). She then went on to state:
“There are two things to note:
  1. Information 2803/08 charges Colleen Wright with transferring criminal property outside of Jamaica. The prosecution concede that they have not proved an essential element of the charge. There is no need to rule on this information.
  2. Information 2793/08 and 2791/08 charge Kern Spencer with transferring criminal property. Both informations speak to the same issue and are duplications. One should be withdrawn and the prosecution determine which one they are proceeding on.

The issue of delay resulting in stay and prosecutorial misconduct were properly raised. Having examined the evidence adduced and the manner in which the trial proceeded it is unnecessary to determine these issues. Both accused should not be called upon to answer.
The accused are dismissed in relation to the charges.”


Thursday, March 27, 2014

Crown's Response: Kern Spencer & Coleen Wright NCS



The following is the Crown's Response to the No Case Submissions (NCS) made on behalf of Kern Spencer and Coleen Wright:






SKELETON RESPONSE TO NO CASE SUBMISSION ON BEHALF OF KERN SPENCER AND COLEEN WRIGHT FOR BREACHES OF THE PROCEEDS OF CRIME ACT AND THE CORRUPTION PREVENTION ACT

1. The prosecution submits that the Crown has proven all the elements relative to the charges brought against the accused for Breaches of the Corruption Prevention Act and the Proceeds of Crime Act.

2. It is our further submission that at this stage all that is required for the prosecution to establish is a prima facie case against the accused in relation to the charges.

3. Questions relative to the credibility or reliability of any of the witnesses called by the Crown are questions of fact for the tribunal of fact to determine at the end of the case.

CIRCUMSTANTIAL EVIDENCE
 
4. The Crown has sought to establish the case against the accused in this case through direct and circumstantial evidence. It is our submission that "the value of circumstantial evidence is that it is a series of facts that cumulatively are capable of supporting an inference of guilt whether or not the elements taken by themselves necessarily compel a finding of guilt": See Melody Baugh Pellinen [2011] JMCA Crim 26 at Para 26.
 
5. In the case of Pellinen the Court cited with approval a passage from Questions of Law Reserved on Acquittal (No. 2 of 1993) 61 SASR 1 as follows:
 
"I would restate the principles in summary form as follows. If there is direct evidence which is capable of proving the charge there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction."

6. At Para. 34, the Court stated that: "the correct approach is to the question of whether the learned trial judge ought to have upheld the no case submission in the instant case is to consider whether the evidence adduced by the prosecution at that stage was such that a reasonable jury properly directed would have been entitled to draw the inference of the appellant's guilt beyond a reasonable doubt."

7. It is for the jury to decide what inferences might properly be drawn from the items of circumstantial evidence relied on by the Crown. At Para. 21 the Court cited with approval Sheperd v. R (1991) L.R.C (Crim) 332 and stated that "the true position is that if an inference of guilt is open on the evidence the question for the jury is whether the inference has been proven beyond a reasonable doubt - not whether any particular fact has been proven beyond reasonable doubt."

ELEMENTS FOR BREACH OF THE CORRUPTION PREVENTION ACT
 
8. In relation to the corruption charges against Mr. Kern Spencer and Miss Coleen Wright, the Crown has to prove the following:
 
a. That at all material times Kern Spencer and Coleen Wright were public servants-
 
i. That Kern Spencer was an official of the State in that he was elected as a Member of Parliament and thereafter appointed as a Member of Government;

ii. That Coleen Wright was employed in the service of a statutory body or authority or government company.
 
b. That in the performance of their public functions they did various acts for the purpose of obtaining an illicit benefit for themselves.

9. The Corruption Prevention Act at section 2 defines a “public servant” as:
"Any person -
a. employed - 
i. in the service of a statutory body or authority or a government company;
ii. who is an official of the State or any of its agencies;
iii. appointed, elected, selected or otherwise engaged to perform a public function.
 
10. Mr. Spencer was a Member of Parliament and Minister of State: See in particular, the evidence of Minister Phillip Paulwell and Mr. Norman Richards. Mr. Spencer's net pay for January - December 2006 was 1,8181,558.16; his net pay for January - August 2007 was 1,827,042.97.

11. Miss Wright was employed by the PCJ in the capacity as a Personal Assistant to Mr. Spencer by PCJ contract dated May 3, 2006 (Exh. 31): See evidence of Ms. Marcia Sibbles, Dr. Jean Dixon and Dr. Ruth Potopsingh. It is the  unchallenged evidence of Dr. Potopsingh that the PCJ is a statutory body that was set up under the Petroleum Act 1979.

12. It is our submission that she was employed by the PCJ under an employment contract therefore making PCJ her employer and assigned to Minster Spencer who supervised her. It is immaterial for the purposes of the Act whether an employee has a contract for service or a contract of service; it may be presumed that Parliament left "employed" sufficiently wide so as to cure the mischief of corrupt practices by any person employed to the government whether by contract or otherwise. (Exh. 31 is the actual contract of employment pertaining to Ms. Colleen Wright and it covers inter alia the commencement period of employment, conditions of employment and circumstances for termination)

BREACHES OF THE CORRUPTION PREVENTION ACT

13. The evidence from Minister Paulwell was that ministerial oversight the Cuban Light Bulb Project was handed over and assigned to Mr. Spencer. According to the evidence of Mr. Chin and Inga Haisley-Bennett from the Registrar of Companies simultaneously several companies were formed, namely:-
a. Universal Management and Development Company (UMDC);
b. Caribbean Communications & Media Network (CCMN);
c. Fuels of Jamaica Limited (FOJ); and
d. Caribbean Protective Security Management Limited (CPSM) were formed (Exh. 1-4)

14. The Company documents show that for:
a. UMDC - Rodney Chin is sole Director and his signature was witnessed by Coleen Wright. The Company Secretary is Verdie Mair (It is the unchallenged evidence of Rodney Chin that Verdie Mair is the mother of Sherine Shakes. It is also unchallenged evidence that Sherine Shakes is the baby mother of Kern Spencer - this is supported by the agreed evidence of Dr. Holness.) The company was incorporated on the 31/7/06.
b. CCMN - Rodney Chin is sole director and the witness to Mr. Chin’s signature is Coleen Wright. The Company Secretary is Verdie Mair. The company was incorporated on the 20/7/06.
c. FOJ - Rodney Chin is the sole Director and his signature is witnessed by Coleen Wright. The Company Secretary is Verdie Mair. The company was incorporated on the 31/7/06.
d. CPS - Rodney Chin and Joseph Blackwood are listed as the Directors. 

15. The evidence of Rodney Chin is that he allowed his name to be used as a front by Kern Spencer in order to open the companies. Mr. Chin further testified that although he is listed as the sole Director of the Companies, they were managed and controlled by Kern Spencer and Coleen Wright. 

16. It is also unchallenged evidence from the NCB banker Craig Williams that Colleen Wright, whom he knew before, signed the documents in relation to the opening of the accounts of UMDC and CCMN as the Company Secretary (Exh. 13 and 15).

17. Both accused used their positions as public servants to enable the companies to receive monies under the Cuban Light Bulb Project in order to obtain an illicit benefit for themselves and others. The unchallenged evidence that the companies received governments funds to the tune of $80 million came from Mr. Henoy Russell, the Financial Controller of PCJ.

EVIDENCE IN RELATION TO KERN SPENCER - CORRUPTION CHARGES

Info. # 2786/08
 
"Being a “public servant” did corruptly accept monies being payment in the sum of three million and one hundred thousand dollars (J$3, 100,000.00) from UMD and Rodney Chin for yourself for the act of omitting to do or doing an act in the performance of his duties."

18. Kern Spencer utilised his office and oversight over the project to place the company UMD in a position to access government funds from PCJ through the light bulb project (evidence of Rodney Chin, Terrence Clarke and Cecil Harrison and material from the cellular phones). He then caused cheques (Exh. 20)  to be encashed by Eldon Nembhard. Mr. Nembhard later took the cash to premises where Mr. Spencer was on Mr. Spencer's instructions (evidence of Nembhard). 

19. Mr. Nembhard testified that he got no benefit from Exh. 20 and despite the insistence of counsel Ms. Martin, he maintained that this money was not for roadwork or any services rendered and that he signed a voucher relative to the funds as a part of a cover up.

Info. #10678/08
"On a date unknown between the 1st day of July, 2006 and the 30th day of July 2007, being a public servant, to wit, a Junior Minister of Government responsible for implementation of the Cuban Light Bulb Project, whilst performing this function facilitated the engagement of Universal Management Development Company Limited (UMDC) as project manager for the Bulb Project without observance of the Government Procurement Guidelines for the purpose of obtaining an illicit benefit for himself and others."

RODNEY CHIN (Direct Evidence)

20. "On or about May, 2006 we spoke. Mr. Spencer called me and asked me at PCJ building he wanted to have a discussion with me. I proceeded to the PCJ building around the end of April/May 2006 where I saw Mr. Spencer. We sat down and had a discussion. He said he did not realize the challenges of being a Member of Parliament was such a financial strain. We spoke about Government Boards, if I would be interested to serve on those. He asked me then if I could help him to set up some companies because he needed this to create job opportunities for the people in his constituency – to empower the people. I agreed because he went on about that financial for the Member of Parliament job, so this would help him a great deal to get them something to do and get them off the street. I told him ok I would assist him. He further spoke of the first company that he wanted to form was a security company and he spoke of my expertise in firearm that would help to get people trained.

21. The other company Mr. Spencer said was one for haulage, the other for communication, TV station. The other was a management company to help small business people how to set up their business management services.

22. When Spencer described the type of company to me I told yes I would go along, he would send the documents for me to sign. What I was concerned about was for him to get somebody good to meet his tax obligations. This I was afraid of.

23. By “somebody good” I meant a good accounting person. I suggested someone. I was afraid/concerned about the tax because as a businessman I know they will come and audit you and I did not want two years later to be liable for something I was not earning anything from, by “something” I mean a business I was not earning from, I was not interested in earning anything from the company.

24. As far as I was concerned, my role was according to Mr. Spencer, with me as an established businessman and it would be easier for him to get the account established because banks look at these things. Once the business up and functioning we had agreed that my name would be taken off of these companies.

25. I would transfer the share to whoever he told me. We had agreed this in principle that my name was a temporary thing to just get them established. I was a front for Mr. Spencer.

26. In respect of the management company, I got documents. Those last three companies – management, communication and haulage – I got all the documents at one time. Miss Wright sent the documents and I signed them and gave them back to the driver. I knew where to sign as it had an “X” at the spot in pencil and my name there and I signed.

27. In respect of the four sets of documents – documents for incorporation of the four companies, when I received them they were blank documents. At the time I signed the documents related to the haulage company I did not know the name of the company. I don’t recall if there was a name on the document because the name was not important to me.

28. The name was not important to me because I was not seeking to get a benefit from it, I was just seeking to assist Mr. Spencer at his request."

29. Mr. Spencer called about a month or two after signing the company documents to ask Rodney Chin to accompany Colleen Wright to the bank to open accounts for the companies.

30. Pg 10, 11 of Notes of Evidence – opening of accounts for companies at NCB Matilda’s corner and transferring of accounts to Santa Cruz.

31. Pg. 14 – Rodney Chin not aware of CLBP – only made aware on 23/10/07 when Spencer said expect a call from Mr. Omar Davies who would call to ask whether the companies formed were connected /related to Rodney Chin.

32. Pg. 16 – Spencer explained what the companies were being used to do.

33. Pg 17  - 'I got several calls from Mr. Spencer that night saying I must remember not to call his name to Dr. Davies and not to mention that he was the one setting up the companies. He called me as late as up to 11:00 p.m. that night.'

34. UMD project manager  - pg. 16 -  23/10/07 Rodney Chin made aware of the name Sherine Shakes. Rodney Chin asked who was the person he had running these companies/in charge of these companies, should he be asked by Dr. Davies who manage these companies. "I knew nothing about the management of these companies and he gave the name Sherine Shakes."

35. Pg. 17 – On the 24th October, 2007 Rodney Chin was at his mother-in-law’s house when Mr. Spencer came there and introduced a lady to him as Sherine Shakes and said that she was the person in charge of the Cuban Light Bulb Project. "I know there is a relationship between Shakes and Spencer. I told him I heard it was his baby-mother and he said yes it was true."

36. Pg 19 – while at Mr. Davies house he got several calls from Mr. Spencer (which he answered twice). Spencer said that "I have to make Dr. Davis believe that I was the person involved and pursued the business to distribute the Cuban Light Bulb Project."

37. Pg. 21 – back dated letters re NCC and pg. 22.

38. Obtained  an illicit benefit for himself and others (conduct suggests benefit was illicit)

39. Through the evidence of Valrie Curtis, Deputy Clerk to the Houses of Parliament, the Crown established there was no permission for Mr. Spencer to carry out business with the government –  The beginning of procurement for a government Minister would be to obtain permission of Parliament and this was not done in respect of UMD.  Instead he utilised Rodney Chin with the assistance of Coleen Wright to 'front' the company which was done in order to access government funds through PCJ for benefit of himself and others.

MONEY LAUNDERING CHARGES

40. According to the authorities, the ingredients of the offence are as follows:

a. The forms of Actus Reus are, inter alia: 
i. engaging in a transaction that involves criminal property; 
ii. converting, transferring or removing criminal property from Jamaica; 
iii. entering into an arrangement to facilitate another person's acquisition, retention, use or control of criminal property. 

b. The Mens Rea is: 
i. knowing--this covers actual knowledge as well as "wilful blindness": Westminster City Council v Croyalgrange Ltd & Anor. [1986] UKHL 9; or
ii. having reasonable grounds to believe that the property is criminal property--this a two-tiered test with a subjective and objective component.

41. According to R v Montila and Anor. [2004] UKHL 50 proof of the illicit origin of the property is required. However, there is no need to prove that the property is the benefit of a particular or a specific act of criminal conduct. The Court of Appeal in R v Anwoir [2008] EWCA Crim 1354 found that there are two ways in which the Crown can prove the property is criminal property or has an illicit origin: 
a. "by showing that it derives from conduct of a particular kind or kinds and that conduct of that kind or those kinds is unlawful; or
 
b. by evidence of the circumstances in which the property is handled which is such as to give rise to the irresistible inference that it can only derived from crime.
"Thus the Crown is not required to allege and prove the specific criminality or even the class of criminality which it says generated the funds which the defendant is now accused of laundering. It must simply lead enough evidence so that the jury can draw the inference that the  property concerned is criminal property."

42. Money Laundering has three main stages:

a. placement- This said to be the first stage where the criminal or someone at his behest or someone acting innocently places criminal property into the legitimate stream of commerce. 
b. layering- this is the process by which illicit proceeds are further separated after they have entered the financial system. This is done by a series of financial transactions that resemble legitimate financial transactions. The aim at this stage is to make the trace back to the illegal source as difficult as possible.

c. integration- the illicit funds are integrated into the economy. At this stage the funds appear to have originated from an entirely legal source.

43. With respect to the Money Laundering counts, the evidence shows that Kern Spencer and Coleen Wright:

a. engaged in a number of transactions (the depositing and subsequent movement of the money into various accounts) with criminal property (the money gained from their criminal activity, viz. facilitating the engagement of UMDC as project manager), and
b. attempted to convert it into legitimate funds by way of a series of activities designed to conceal/disguise the true source of the money;
c. With respect to information #2790/08 that Kern Spencer, knowing that the money was criminal property, authorised its transfer out of Jamaica. 

44. In this case, the criminal conduct is the breach of the Corruption Prevention Act by Kern Spencer and Coleen Wright.

KERN SPENCER
 
45. In relation to Mr. Spencer, the evidence has shown the placement of the money into various accounts owned by Kern Spencer by virtue of a series of transactions/activities. 

Info. # 2788/08 
“Engaged in transaction with criminal property, being the amount of three million (J$3,000,000) dollars.” 
46. On July 25, 2007 fixed deposit account #ending 369 was opened in the name Kern Spencer with $3M cash (Exh. 41 – deposit slip for $3M). This sum was deposited in two instalments of $700,000.00 cash (Exh. 39). Later the same day, Ms. Coleen Wright deposited $2,325,000 (Exh. 39A). Ms. Wright told her to lodge the full amount because it was not her money. This money was said by Mr. Spencer to be the proceeds of a loan from NCB.

ELDON NEMBHARD

47. Eldon Nembhard on KS’s instructions encashed UMDC cheque# 615837 dated July 30th, 2007 in the amount of $3.1 million.

48. Nembhard then took the cash to premises where Mr. Spencer was on Mr. Spencer's instructions.

SASHA NEIL

49. Spencer used  $3 million cash to open a/c 10094652 at JNBS on July 30, 2007 in the names of Kern Spencer and Peggy Spencer-Ewen.

50. Spencer gave the source of funds as stage show and birthday party in St. Elizabeth.

DSP WHILBY

51. July, 2007 received correspondence from the Commanding officer, Supt. H. Francis.

52. July 19, 2007, Whilby went to Braes River Square where location pointed out by Mr. Spencer.

53. Area inspected and recommendations (Safety, Security and Crowd Control) made to Mr. Spencer.

54. 22/7/07 about 5 p.m. stage was constructed in Braes River for the stage show.

55. No Barriers or enclosed sections for the collection of entry fee.

56. Patrons not required to pay a fee.

57. Note that Kern Spencer indicated to Miss Neil that if he had know that there would be an issue, he would say that the money came from his mother.**

Info. # 2789/08
 
“Converted the sum of J$2,657,317.39 to USD seven thousand, eight hundred and thirty-six dollars and 65 cents (US$37,836.65) dollars knowing the same to be criminal property contrary to section 92 1(c) of the Proceeds of Crime Act.”
58. The evidence has shown that on the 14th September, 2007, Spencer withdrew the remaining balance on a/c# 10094652 and 10094369 and combined with funds of $993,753.43 from Wright's a/c 10094909 and lodged to Wright's US a/c # 10625578. The combined sums were used to purchase US$37,836.65 in the name of Olint Corporation.

SASHA NEIL

59. On September 14, 2007 Colleen Wright who was in the company of Mr. Spencer told her that she wanted to close her fixed deposit account# 10094909. (**D’wain Clarke opened)

60. A/c closed – closing balance - $4,027,172.60 – Exh. 52

61. An amount of over $3M used to close off an existing loan and balance of $993,753.43 combined with money taken from Mr. Spencer.

62. Combined figure of J$2,657,317.39 used to purchase US dollars on a banker’s draft.

63. US$37,836.65 deposited to Colleen Wright’s fixed deposit a/c number 10625578. (Exh. 53)

64. Draft in amount of US$37,836.65 made payable to Olint Corporation was handed over to Ms. Wright.

Info. # 2790/08
 
"Transferred from Jamaica criminal property, being the amount of sixty-four thousand, five hundred and seventy-six dollars and fifty cents (US$64,576.50) dollars, knowing the same to be criminal property contrary to section 92 (1) (c) of the Proceeds of Crime Act."

65. The evidence has shown that on the 30th July, 2007 fixed deposit a/c # 10094652 was opened in the name of Kern Spencer in the amount of J$3M cash. Mrs. Spencer-Ewen's name was added on the 31st of July, 2007. Said to be proceeds of a birthday party. 

66. The evidence has shown that Eldon Nembhard on the 30th July, 2007 encashed UMDC cheque#615837 in the amount of J$3M payable to Nembhard on the instructions of Mr. Spencer. This cash was taken back to the house where Mr. Spencer and Mr. Allen were and left on the floor.

67. DSP Whilby said that there was a stage show in Braes River.

68. On the 14th September, 2007 monies in this a/c were used to set off a Term Share Loan.

69. The proceeds of the loans on instructions of Kern Spencer were prepared for a wire transfer in the amount of US$64,576.50 and was sent to a/c # 1106704706 which was held at Banco Popular, in North America. The remaining cash was handed over to Mr. Spencer who then handed it over to Ms. Wright: See Evidence of Sasha Neil.

Info.2791/08
 
"Became concerned in an arrangement that knowingly facilitated the use of criminal property, valued at US$64,576.50 by Everol Orr contrary to section 92 (2) of the Proceeds of Crime Act 2007."

70. The evidence has shown that on the 14th September, 2007, Mr. Spencer contacted Mr. Everol Orr and told him "to take [the] 2 cheques to Jamaica National (JN) and purchase a manager's cheque. I got the money to purchase the foreign exchange by purchasing a manger's cheque from NCB. I think I put them to JN. I took them to JN to purchase some US dollars. I think it was to deposit as part of the Olint scheme." In cross examination he insisted that these 2 cheques were not for goods and services. In examination in chief when asked if he derived any benefits he said no.

71. Kern Spencer instructed Orr to purchase a manager's cheque and take to JNBS and give to Sacha Neil. He lodged the amount to his account#10068097 which was used to purchase a draft for US$63,965.88 in favour of Olint Corporation.

Information 2792/08

"Became concerned in an arrangement that knowingly facilitated the use of criminal property being NCB cheque in the amount of Four Million and Five Hundred Thousand Dollars by Everol Orr contrary to section 92(2) of the Proceeds of Crime Act

72. The Crown is relying on the same submissions in relation to Information 2791/08.


THE CASE AGAINST COLEEN WRIGHT

Information 2803/08 -- Colleen Wright

"Transfer criminal property, being the amount of One million, Two Hundred Thousand (J$1,200,00)"

73. Dwain Clarke gave evidence that on the 7th of August 2007, Coleen Wright came to JN Santa Cruz and requested to have a fixed deposit account opened with J$4,000,000. She also wanted to obtain a loan of J$3,000,000. She opened the fixed deposit account by presenting J$500,000 cash. She returned later the same day with J$3,500,000 cash which she said came from a loan at NCB. She received the loan of J$3,000,000 which she divided as J$1,8 in cash and J$1,200,000 which she asked be made out as a cheque made payable to Helpline, her company. She therefore transferred $1,200,000 to her company, Helpline. 

74. According to Anwoir, the sort of evidence that may be used to support such an inference is inter alia:
a. evidence of Miss Wright's legitimate income (Exh. 31)
b. this was also during a time period where she had engaged in unlawful conduct relative to other funds for which we have proven the source
c. her conduct relative to the funds which indicates that she would have been in the layering stage of money laundering (placing funds in account, taking out loan against funds).

75. The Crown has led evidence from which the inference may be drawn that the money was derived from an illicit source. Given the peculiar nature of the train of this evidence, especially in light of the fact that:
a. Miss Wright clearly had access to the accounts of the companies; 
b. she was in possession or joint possession in her apartment of blank cheques for the UMDC account which had already been signed by Mr Chin;
c. she clearly had and exercised dominion over the accounts of UMDC and CCMN; and
d. the evidence was the she would from time to time monitor these accounts,
there is clear evidence from which it can be inferred she that she had gained an illicit benefit. The evidential burden therefore shifts to her to disprove the inference of illegality that arises on these circumstances.

76. It is submitted that in relation to this information the Crown does not have to prove any predicate offence or the source of the funds as was exemplified in the case of Anwoir.

Information 2804/08 -- Colleen Wright
77. The evidence of  D'wain Clarke is that Coleen Wright came to the Jamaica National Bank, Santa Cruz branch at 10 a.m. and said she wanted to open at fixed deposit account with $4m. She wanted to obtain a loan of $3M. She later handed over $500,000 and said she would return with the balance of $3.5M.

78. At about 2:10 p.m. the same day, Coleen Wright returned to the bank with $3.5M cash. Dwain asked what was the source of the funds and she said it came from a loan at NCB. He deposited the money and then he processed her loan for the $3M.

79. $1.8M was to cash and $1.2 was to be a cheque payable to Helpline.

80. The arguments in respect of this Information are the same as those outlined above in respect of Information 2803/08.


Information 2805/08

“Converted the sum of J$2,657,319.35 to US$37,836.65 knowing same to be criminal property”

81. On July 25, 2007 fixed deposit account # ending 369 was opened in the name Kern Spencer with $3M cash (Exh. 41 – deposit slip for $3M). This sum was deposited in two instalments of $700,000.00 cash (Exh. 39). Later the same day, Ms. Coleen Wright deposited $2,325,000 (Exh. 39A).Ms. Wright told her to lodge the full amount because it was not her money. This money was said by Mr. Spencer to be the proceeds of a loan from NCB.

82. On the 30th July, 2007,  account ending 652 was opened in the name of Kern Spencer with J$3M cash (Exh. 41 deposit slip for J$3M). These funds were said by Mr. Spencer to be the proceeds from his birthday party.

83. The evidence, however, shows that Eldon Nembhard on the 30th July, 2007.

84. Mr. Spencer told Miss Sacha Neil-Elliott that these funds were the proceeds

Information 158/09
 
"On a date unknown between the first day of July 2006 and the 30th day of July 2007, being a public servant, to wit, a personal Assistant employed by the Petroleum Corporation of Jamaica and assigned to Kern Spencer whilst in the performance of her function aided and abetted the engagement of the UMDC as project manager without the benefit of the observation of the government procurement guidelines for the purpose of obtaining an illicit benefit for herself and others."

85. Miss Wright aided and abetted Mr. Spencer in the following ways: 
a. She was an active participant in the formation of the companies
b. She took the documents to Mr. Chin, signed as witness to his signature and accompanied him to NCB in respect of opening the accounts for UMDC
c. Craig Williams indicates that she was the person who opened the account for UMDC at NCB Santa Cruz and she signed the Appointment of Bankers for UMDC as Company Secretary (Exh. 15). She had Rodney Chin sign blank UMDC cheques which were subsequently recovered from her apartment. 

86. This was in the context of Mr. Spencer having no permission from Parliament to engage the services of UMDC to carry out government services in circumstances where UMDC was owned and operated by him, a government Minister. This was with the aim of obtaining an illicit benefit for herself and others and this is borne out by the evidence of Rodney Chin and Eldon Nembhard.

UNDUE DELAY RESULTING IN AN UNFAIR TRIAL

87. It is our submission that undue delay in itself is not a ground for staying a trial. The court should have regard to the length of the delay, the reasons alleged to justify it, the responsibility of the accused for asserting his rights, and any prejudice to the accused. These principles are equally relevant to post-trial delays, inclusive of the appellate stage: See Allan Cole v. R [2010] JMCA Crim 67.

88. While we concede that there has been delay in the trial, it is our submission that there has been no prejudice or unfairness to the accused that should result in the staying of the trial or the no case submissions on behalf of the accused being upheld.

NON-DISCLOSURE/UNFAIRNESS IN CRIMINAL TRIALS

89. In response to paragraph 22, the Court of Appeal gave an oral judgment dismissing the appeal by the Senior Resident Magistrate and affirming the majority decision of the Full Court. This Court is therefore bound by the reasoning and judgment of the majority judgment of the Full Court. Hence, the Order for disclosure has been complied with, the subpoena has been quashed and the order for The DPP to remain out of hearing has also been quashed.

90. The arguments that full disclosure was not made on the nature and circumstances of the meeting were fully ventilated before the Full Court and the Court of Appeal which upheld the ruling of the Full Court. Evon Brown J  in assessing the disclosure made by the DPP stated:
“A perusal of the matters disclosed by the DPP reveals that the focal points of the interview were an assessment of the probity of Mr. Chin's proposed evidence and his veracity as a potential witness. Two consequences flow from that. In the first place, what was said to the DPP by Mr. Chin concerning his involvement in the crime amounts to a previous statement, insofar as its possible use in a subsequent trial is concerned. Secondly, in the judgment of the DPP, Mr. Chin was capable of being adjudged a credible witness by a Tribunal of Fact.”

91. The Court reasoned that were there previous inconsistent statements by the witness Rodney Chin these could be used to attack the credibility of the witness but there is no evidence of any previous inconsistent statement by the witness. Evon Brown J:
"What then of the previous statements made to the DPP? As has been judiciously observed elsewhere, these may prove to be a powerful weapon in the powerful weapon in the hands of the defence to attack the credibility of the witness Chin. That is, if they were previous inconsistent statements. However, there is no such claim. On the contrary, the undisputed evidence before us is that the evidence given so far is consistent with the statements given by Mr. Chin before the commencement of the trial. Therefore, the evidence of the DPP, as imprecise as it may be from the disclosure given, would not be of assistance in the trial."

92. In response to paragraph 24, it is submitted the information has been disclosed by the DPP. The issue of 'agreements' which led to charges being dropped against Chin was also ventilated and addressed by the Full Court: See paragraphs 147-154.

93. At Para. 161 the Court stated that:
"Be that as it may, it is an unassailable fact that disclosure was made. From what has been disclosed, there was no variance between what was said and the proposed evidence. So, only the fact of the meeting need have been disclosed. Further, if being an officer of the Court is to be given due weight, it ought to be accepted that the disclosure is as accurate and complete as it can be in the circumstances. That being the case it would be inappropriate to require the DPP to give a statement and be forced to give evidence."

PROSECUTORIAL MISCONDUCT

94. The Crown relies on and adopts the submissions previously made before this Court in relation to prosecutorial misconduct and also relies on the majority judgment of the Full Court in D.P.P v. the Senior Resident Magistrate (  ) and the oral judgment of the Court of Appeal dismissing the appeal and affirming the judgment of the Full Court.

95. Evon Brown, J stated at paragraph 153 in relation to prosecutorial misconduct in circumstances where the landscape remains the same in that all the material which is presently before the Court was available before the Full Court as follows:
"Nothing has been placed before us resembling the pale shadow of prosecutorial misconduct. The charge of prosecutorial misconduct remains a theory with a superstructure which awaits the excavation for its foundation."

96. In light of the foregoing we submit that there is a case to answer for both Kern Spencer and Colleen Wright in relation to the Informations laid.