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.

No Case Submission: Coleen Wright



The following is the No Case Submission (NCS) made by K.D. Knight Q.C. on behalf of Coleen Wright:




NO CASE SUBMISSION (SKELETON ARGUMENTS)

R  v  COLEEN WRIGHT AND KERN SPENCER


INTRODUCTION

The submission is based on the following: -
  1. JAMAICA CONSTITUTION
  2. FAIRNESS IN CRIMINAL TRIALS
  3. LORD PARKER’S PRACTICE DIRECTION

Following discussion under each of these heads, there is an Analysis of Counts, then an Analysis of Evidence of Particular Witnesses.

THE CONSTITUTION
The Jamaica Constitution relevant to this case provides in Section 20(1) “whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.
Section 20(6)(b) and (d) provide: -
Every person who is charged with a criminal offence –
(b) shall be given adequate time and facilities for the preparation of his
defence;
(d) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before any court........”

It is submitted that there is a clear breach of Section 20(1) in that this hearing began in 2009 and as at March 18, 2014, has not yet concluded.  Indeed the first trial date was set for September 2008 and the accused was charged in February 2008, the latter being in excess of six years.

The language of the Constitution is clear and it is for this court to determine if any of the periods referred to could possibly constitute a reasonable time.
It is submitted that if the time from the charge or commencement of the trial to the present is held not to be “reasonable” the court has the power to dismiss the charges in the absence of the DPP not withdrawing them and a verdict of “not guilty” endorsed on the Informations. 
It is further submitted that there can be no real distinction between undue delay prior to trial and undue delay subsequent to the commencement of the trial.  The latter is no less unfair than the former, nor is it less oppressive.
For undue delay see NO HCC 20/04  R  v  Byron Johnson et al.

It is submitted that Section 20(6)(d) has been breached in that the facilities (disclosure) were not afforded to the defence to examine the witnesses called by the prosecution.  This submission is exemplified in two glaring instances of extreme importance: -
1. The Court made an order for the DPP to provide in a witness statement an account of her questioning of Rodney Chin.  This disclosure has yet to be fulfilled, thus depriving counsel for Miss Wright the opportunity to fully examine Mr Chin on the circumstances, which caused him to be transformed from accused to prosecution witness without having to plead to any offence (e.g. aiding and abetting).  The evidence of SSP Fitz Bailey classifies the DPP as an investigator in this case.  Further Mr Spencer’s attorney had not concluded cross-examination of Mr Chin, awaiting the disclosure from the DPP which never materialized;
2. The prosecution on the eve of the closure of their case disclosed that they had access to a thumb-drive which turned out on the evidence of Sgt. Patrick Linton to contain in excess of eleven thousand documents and of which only seven thousand (approximately) were served on the defence, using a CD ROM.

In effect example number 1 breaches Section 20(6)(d) whilst example number 2 breaches both Section (1) (adequate time) and Section 20(6)(d) (opportunity to examine prosecution witnesses).
It is submitted that when the breaches are taken together they militate against a fair hearing which again is in breach of Section 20(1) (fair hearing).

Where the court comes to the view, as is submitted it should, that a fair hearing, was impossible or has not taken place the consequence is dismissal of the charges.
See Melaine Tapper  v  DPP (2012) U.K.P.C.26 No.0015 of 2011 paragraph 26-27.

FAIRNESS IN CRIMINAL TRIALS
It is a cardinal rule that fairness must permeate the hearing of a criminal case.  There are several instances of unfairness in this case, most revolving around the issue of disclosure.
(1) The chief witness, Rodney Chin gave 7 statements, each providing new disclosure thus preventing the defence from having a wholistic approach to the preparation of the case.
(2) The chief investigator SSP Fitz Bailey gave 4 statements with the same consequences as above.
It is extraordinarily unusual for the main witness to give six further statements during the course of his evidence.  It is no less unusual for the chief investigator to provide four statements, especially in circumstances where as events unfolded during the evidence of the chief witness Rodney Chin the investigator’s further statement was adjusted to coincide with that evidence or with submissions made by the chief prosecuting attorney.
(3) The defence sought the intervention of the Court of Appeal to ensure that full disclosure was given by the prosecution.  It was asserted there as it has been the case during the hearing of these charges that full disclosure was given.  In a letter from the DPP which formed the basis of submissions before this court the unequivocal statement was that full disclosure had been given and there was nothing further to disclose.  As the case progressed, the inaccuracy of those assertions unraveled before the court.  For example, the prosecutor knew that a meeting had been held with Mr Chin whilst he was still an accused and that SSP Bailey questioned him (along with others) but failed to disclose that.  SSP Bailey testified that Chin called and spoke with him and he relayed the substance of the conversation to the DPP, but that was never disclosed.  The SSP testified that he instructed Insp. Berry to take “jottings” of the meeting of November 19, 2008, but to this day the jottings have not been disclosed.
The prosecution have behaved as if disclosure is an act of generosity on their part and not an obligation imposed by Law.  The duty is to disclose everything.  There is no leeway to cherry-pick.
(4)  During the trial the defence cited examples of prosecutorial misconduct and made submissions thereon.  Those submissions are adopted here and form part of the prayer for these charges to be dismissed at this stage.

LORD PARKER’S PRACTICE DIRECTION
The Practice Note issued by the Divisional Court (1962) I.A.E.R.
A submission of no case may properly be upheld –
(a) when there has been no evidence to prove an essential element in the alleged offence;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.
The charges preferred against Coleen Wright will be examined separately.

The prosecution has stated emphatically, and there is no disagreement, that the case is based on circumstantial evidence.
Based on that fact, it is necessary to remind the court on how to treat with this kind of evidence.
“It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another.........
It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances.
See Archbold 2000 paragraph 10-3/01183 and Teper  v  R [1952] A.C. p480 @ 489, P.C.
As has been said circumstantial evidence must point to guilt and guilt only and must be inconsistent with any other inference.

ANALYSIS OF COUNTS
INFORMATION  158/2009  -  Ingredients to be proved –
a)    “being a Public Servant, to wit a Personal Assistant employed by the Petroleum Corporation of Jamaica (PCJ)”

In this case the prosecution depend on the definition of “public servant” as stated in the Corruption (Prevention) Act.  It is defined as follows: -
“public servant” means any person –
(a)           employed  -
(i) in the public, municipal or parochial service of Jamaica;
(ii) in the service of a statutory body or authority or a government company;
It is observed that there has been no direct proof of the PCJ falling into any of the categories in above.  It is possible, without necessarily conceding, that judicial notice can be taken of the status of the PCJ.

What the statute did not do was to define what “employed” means and hence it is to the common law one must turn to find a definition.  Was Miss Wright employed under a contract of service or a contract for service?  In the book Labour Law – Cases and Materials (1980) it is stated, “one feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business, where, under a contract for service, his work, although done for the business is not integrated into it but is only accessory to it”.  Coleen Wright was neither integrated into the PCJ nor accessory to it.
“A servant is a person subjected to the command of his master as to the manner in which he shall do his work”  Yewens  v  Noakes (1880) per Bramwell L.J.  In Gibb  v  United Steel Company (1957) Justice Streatfield posited the test as being “who has the right at the moment to control the manner of the execution of the acts of the servant”.
It is submitted that at highest Coleen Wright was under a contract for services and this is based on the following tests: -
1) (a)  Was she employed as an integral part of PCJ?  or
(b)   Was she only an accessory to it?
2) Was she subject to the command of the PCJ as to the manner in which she should do her work and the times when she should do it?
3) Did PCJ control what she did and where she did it?
4) Was she paid on a head count by PCJ or on output?
5) Did she work in conformity with the PCJ company practice?
6) Did PCJ treat with her as an employee, by applying PCJ pay scales?
7) Why did PCJ determine her contract?
8) Was the intention of PCJ to employ Miss Wright as a public servant?

The evidence of Dr Jean Dixon, Permanent Secretary was that: -
  1. The Personal Assistant assisted in political matters.
  2. A Personal Assistant is not a public servant.
  3. A Personal Assistant is not permanently employed. 
  4. As Permanent Secretary she had no supervising role over any of the   Personal Assistants of the Minister of State. 
  5. Personal Assistants take instructions as to what to do from Minister  (Junior or Senior).   
  6. If she gave instructions to a Personal Assistant it need not be carried out.
  7. A public servant is one whose office comes under the Establishment Act.
It is a notorious fact that public servants are not to be engaged in political matters.
Hence it could never have been contemplated by PCJ that she was employed as a public servant in the Ministry of Investment, Technology, Energy & Commerce.

 Marcia Sibbles, the HR Specialist at PCJ in her evidence said: -
(1) Miss Wright was employed by PCJ to work with Mr Spencer as Personal Assistant.
(2) Her employment did not conform with the procedure and process used by PCJ to employ staff.
(3) The salary paid did not conform with PCJ pay scales for similar positions.
(4) PCJ had no position of Personal Assistant.
(5) Miss Wright’s job was terminated shortly after the election of 2007.
It is submitted that based on the evidence of Dr Jean Dixon, Ms Marcia Sibbles, (Mr Phillip Paulwell and Dr Ruth Potopsingh, not quoted) Miss Wright was not an employee of PCJ, but was a person who had a contract for service to perform duties as Personal Assistant to then Minister of State, Kern Spencer.

It is further submitted that Miss Wright not being a Public Servant the prosecution failed to prove an essential ingredient of the charge.

FURTHER INGREDIENT OF 158/2009
“Whilst in performance of her function”
Any function she performed was not in the capacity of a Public Servant and hence even if she aided and abetted the engagement of UMDC, she cannot be visited with criminal culpability as this in itself is not a criminal act.   



“Aiding and abetting the engagement of UMDC”
There is no evidence to establish that she had anything to do with any purported engagement of UMDC.
There is no evidence of Miss Wright doing any act which is referable to UMDC being engaged as Project Manager and there is no evidence that her functions contemplated “the observation of government t procurement guidelines”.  And further there is no evidence of any intent on her part to have obtained an illicit benefit for herself or any other.

The only evidence related to Miss Wright and UMDC is that she transported documents to Mr Chin to be signed by him in the formation of a company and the establishment of an account.  That could hardly suffice to establish aiding and abetting engagement.
In the circumstances Information 158/2009 fails on the first limb of the Practice Direction.

INFORMATION 2803/08     -     Witness D’wain Clarke
EXH.61  “Transferred from Jamaica criminal property being the amount of  Jamaican  $1.2 million.”
No evidence whatsoever has been adduced to substantiate this charge.  No ingredient has been proved and so the charge must fail.

INFORMATION 2804/08
INGREDIENTS
“Engaged in transaction with criminal property”
The evidence adduced through D’wain Clarke is that when he asked Miss Wright where she got the money from, she said an account at NCB. There is no contradictory evidence.  Mrs Peggy Spencer-Ewan’s name was added to the account.  The evidence from Supt. Francis et al is that she is a business-woman in Black River, owning a Pharmacy and other business places.  There is no evidence to suggest that Mrs Spencer-Ewan was involved in any criminal activity.

INFORMATION 2805/09
INGREDIENT  
“Converted..................criminal property”
There is no evidence capable of establishing that this money is criminal property.  The account 10094909 was a joint one with Mrs Peggy Spencer-Ewan and there is no allegation made against her.  A reasonable inference is that transactions with Mrs Spencer-Ewan are legitimate and indeed Miss Sascha Neil’s evidence is that Mrs Spencer-Ewan was a customer of the bank, who would have gone through due diligence.  The money taken from Mr Spencer, was on Sascha Neil’s evidence, identified as coming from the proceeds of a birthday party.  Supt. Howard Francis confirms the birthday party, headlined by “Beenie Man” and his evidence was that with the crowd and his experience of the spending pattern of patrons quite a lot of money could have been made.  There is simply no evidence that the money came from an illegal source and moreso any source connected with this case.

Based on the law applicable to circumstantial evidence, there are several reasonable inferences which can be drawn in relation to each count which do not equate with guilt.
In the circumstances it is submitted that the submission should be upheld.

ANALYSIS OF EVIDENCE OF PARTICULAR WITNESSES
1. VALRIE CURTIS
The evidence of Mrs Curtis establishes that Mr Spencer was not only aware of the circumstances under which he could do business with the government, but that he in fact employed the appropriate means to do so by seeking an exemption whilst he was a Senator, a position he held until September 2007.  The effect of this evidence is to give credence to the position of the defence which is that Rodney Chin fabricated his evidence.
2. SUPT. HOWARD FRANCIS
His evidence provides the basis for an inference that monies negotiated by Mr Spencer came from a legitimate source.  He confirmed the status of Mrs Spencer-Ewan.

3. HENROY RUSSELL
Mr Russell who authenticated all expenditures confirmed that all payments represented value for money and all invoices were genuine.  From the evidence no payments were made to Mr Spencer nor Miss Wright.

4. SASCHA NEIL
The transactions referred to in her evidence had no traces whatever to criminal property and indeed verified the legitimacy of the source of funds.  Her evidence on source is corroborated by Supt. Francis.  Her evidence on legitimacy is bolstered by the fact that Mrs Spencer-Ewan is a businesswoman, customer of the bank and a joint account holder and against whom no allegation is made.

5. SSP FITZ BAILEY
The evidence of SSP Bailey is flawed and rendered manifestly unreliable by cross-examination.  His evidence forms the platform for the dismissal of this case on the basis of unfair trial.  Exhibits 85(a)(b)(c) confirm that he was engaged in a cover-up concerning the circumstances under which Rodney Chin became a prosecution witness.  It should be borne in mind that without Chin’s evidence, fabricated though it is submitted it is, the prosecution could not have commenced at all.  It is therefore of paramount importance for the court to be satisfied that Chin became a witness in unquestionable circumstances.  There is no reasonable basis on which SSP Bailey’s evidence can be reconciled.  His evidence as to the meeting of 19th November 2008 with Chin, the DPP and others was built on shifting sand where he clearly wrote his statements to coincide with what was occurring in court at a particular time.
Was Chin questioned by the DPP and Bailey on an existing statement on 19th November 2008?  Why was the DPP’s submission to the court as to her having questioned Chin on an existing statement so categorical and yet later changed?  How was Bailey’s account in exhibit 85 so firmly recorded and yet later changed?  How did Chin testify that he was questioned on his statement and he too was so wrong?  Why is it no one can recall what really took place?  Why were the “jottings” of Berry not disclosed?  Why was there no disclosure of the phone contact between Chin and Bailey?  Why did the DPP assert to this court and the appeal court that everything was disclosed, knowing fully well that that could not have been accurate?  Why were these two courts mislead?

(6) INSPECTOR ERRINGTON MALCOLM (Ret’d)
Inspector Malcolm curiously did not know the whereabouts of Coleen Wright before searching Renfrew Road, yet she was at OCID.  SSP Bailey and himself conflict.  Why was the warrant not endorsed, yet Malcolm would not even accept that?  SSP Bailey sought to give peculiar explanations on that issue.

(7)            ELDEN NEMBHARD

His evidence in essence is that he did work for which he was paid and does not in any-way affect Coleen Wright.

(8) EVEROL ORR
The gravamen of Mr Orr’s evidence emerged in cross-examination by Ms. Martin and was as follows: -
1. that all payments he received from UMDC and CCMN were payments for the provision of goods provided by his supermarket.
2. Mid-Island Investment invested an amount of US$63,965.88 with OLINT.  None of his evidence implicated Miss Wright.

(9) RODNEY CHIN
Mr Chin’s evidence bears little relevance to Coleen Wright and in any event none of it is capable of substantiating any of the charges against her.  The highest his evidence goes in relation to Miss Wright is that she brought documents to him to be signed, which were sent by the person to whom she reported.

At one stage in his testimony Mr Chin did say that Miss Wright was running the companies.  However, at a later stage he retracted that and testified that in saying so he spoke out of context.

The tape recordings admitted in evidence do not touch and concern Miss Wright, so as to be able to visit her with criminal culpability.


CONCLUSION

It is submitted that for the reasons mentioned above the submission ought to be upheld.  The circumstantial evidence, if there be any, cannot be said to be inconsistent with innocence and clearly cannot be said even to cast suspicion, let alone to point to guilt and guilt only.

No Case Submission: Kern Spencer

The following is the No Case Submission (NCS) made by Deborah Martin, Attorney-at- Law, on behalf of Kern Spencer:

HOLDEN AT HALF WAY TREE RESIDENT MAGISTRATE’S COURT 
HALF WAY TREE
IN THE PARISH OF ST. ANDREW



REGINA v. KERN SPENCER –
FOR CORRUPTION, MONEY LAUNDERING



INFORMATION NO:              10678/08
                                                2788/08
                                                2789/08
                                                2790/08
                                                2791/08
                                                2792/08


APPLICATION FOR STAY OF PROCEEDINGS AND DISMISSAL
OF ALL CHARGES AGAINST THE ACCUSED KERN SPENCER


GROUNDS

  1. Denial of right to fair trial within reasonable time.
  2. Denial of right to fair trial because Prosecution failed to give disclosure of material evidence in a timely manner or at all.
  3. Denial of right to fair trial because of Prosecutorial Misconduct.
  4. No Prima Facie case to answer as evidence does not support any of the charges.



BACKGROUND

1.         The Constitution of Jamaica prior to the 8th day of April 2011, guaranteed a right to a fair hearing and the protection of law pursuant to Sec. 13(a) and the right to be given adequate facilities for the preparation of one’s Defence pursuant to Sec. 20 (6) (b).  The Constitution of Jamaica after the 8th day of April 2011 guarantees every citizen charged with a criminal offence a fair trial within a reasonable time.  Sec.16 (6)(a) further stipulates that there be adequate time and facilities for the preparation of one’s defence.

        The Accused Kern Spencer submits that his right;
        (i)   To a fair trial, (ii) Within a reasonable time, and
        (iii) That he be afforded adequate facilities for the preparation of his defence,
         have been infringed and thus he is, and has been denied a fair trial.  Wherefore it is being submitted that the Learned Trial Judge stay these proceedings on the basis of unfairness and not call up on the accused to participate any further in this trial.

The Claimant was arrested by the Police on the 26th February, 2008 and was taken before the Half Way Tree Resident Magistrate’s Court on the following informations:-

Info # 2792/08 Money Laundering contrary to Sec 92 (2) of the Proceeds of Crime Act 2007.

Info # 2791/08 Money Laundering contrary to Sec 92 (2) of the Proceeds of Crime Act 2007.

Info # 2790/08 Money Laundering contrary to Sec 92 (1) (e) of the Crime Act 2007.

Info # 2789/08 Money Laundering contrary to Sec 92 (1) (b) of the Proceeds of Crime Act 2007.

Info # 2788/08 Money Laundering contrary to Sec 92 (1) of the Proceeds of Crime Act 2007.

Info # 2787/08 Money Laundering contrary to Sec 92 (1) (c) of the Proceeds of Crime Act 2007.

Info # 2786/08 Breaches of the Corruption Prevention Act.

Info # 2785/08 Conspiracy to Defraud contrary to Common Law.

Info # 2784/08 Conspiracy to Defraud contrary to Common Law.

5.           Also arrested and before the Court were Coleen Wright on 6 informations; Informations # 2801/08 – 2806/08 and Rodney Chin on 5 Informations; Information # 2796 – 2800/08.  The particulars of Information 2799/08 names the Accused Kern Spencer as the person Rodney Chin acted with, in breach of Sec 14 (2) (b) of the Corruption Prevention Act, and the particulars of Information 2796/08 names the Accused Kern Spencer as the person Rodney Chin conspired with, to defraud contrary to Common Law.  The Accused at the material time was a Minister of State in the Ministry of Industry, Technology and Commerce and was assigned responsibility for what has been known as the “Cuban Light Bulb Programme”.  The then Defendant Rodney Chin was a Contractor, whose contracts with the state involved duties required in the said programme.

6.         The Accused and Rodney Chin were granted bail by the Learned Resident Magistrate His Honour Mr. Glen Brown in the sum of $10,000,000.00 each while Ms. Wright was granted bail in the sum of $5,000,000.00.

7.         The Accused’s matter was mentioned on March 26, 2008, May 16, 2008, June 19, 2008 and July 31, 2008 and was set for trial for the week commencing the 15th September, 2008.  On the 15th September, 2008, the matter was adjourned as the Defendant Rodney Chin indicated that he had recently changed his Attorney to Mr. Richard Small who was off the island.  The matter was set for mention on the 18th to agree a convenient trial date with Mr. Small.

8.         On the 18th September, 2008 all Attorneys were present.  The Director of Public Prosecutions laid a new information before the Court; Info 10678/08 charging Kern Spencer for Corruption contrary to Sec 14 (1) (b) of the Corruption Prevention Act which alleges that the Accused facilitated the engagement of Rodney Chin’s company for the purpose of obtaining an illicit benefit for himself and others.

9.         Up to this time, nothing in the voluminous disclosure contained any evidence to base the added charge.  This was to come when all charges were to be dropped against Rodney Chin and his statement was disclosed to the Accused with the advisement that Mr. Chin would be a Crown Witness.  The matter was set for trial on January 12, 2009 to continue for two (2) weeks.

10.     On the 22nd December, 2008 Counsel for the Accused were advised in a letter that the Crown would not be proceeding against Rodney Chin and that he would be utilized as a Crown witness.  Copies of his two (2) witness statements were enclosed, which contained admissions and confessions.  Thereafter, a request was made in writing on the 7th January, 2009 in a letter addressed to the Director of Public Prosecutions for:-

(1) disclosure of all statements or conversations between the Director of Public Prosecutions’ and/or her agents on the one hand, and the Defendant Rodney Chin and/or his Attorneys or agents on the other hand, concerning his becoming a Crown witness and the withdrawing of the charges against him;
(2) disclosure of all Government or public contracts granted to Mr. Chin since September 2008; and further
(3) disclosure of discussions concerning the status of the case against Rodney Chin between the Director of Public Prosecutions, her office and/or agents and any Government Politician in the Executive or Parliament.
11.      The Accused’s Attorneys were told in writing by the Director of Public Prosecutions in a letter dated the 7th January, 2009 that Rodney Chin was still an accused and that the request should be directed to his Attorney, Mr. Richard Small, who had initiated the offer to give evidence with the Director of Public Prosecutions.

12.      The request for disclosure from the Director of Public Prosecutions’ office was repeated on the 8th January, 2009.  The request was acknowledged by letter dated the 9th January, 2009, however it was not responded to.

13.      On the 12th January, 2009, in an address to the Half Way Tree Resident Magistrates Court, the Director of Public Prosecutions indicated she was not withdrawing the charges against Rodney Chin until after the trial commenced.  The Accused’s Attorneys advised the Court of the request for disclosure in light of the Director of Public Prosecutions’ stated intentions and submitted that until there was disclosure, the defence could not be ready as it would not have the disclosure necessary to discredit Rodney Chin’s credibility as a witness.  The Learned Trial Judge adjourned the matter to the 21st January, 2009 in the interest of justice.

14.     On the 21st January, 2009, a Nolle Prosequi was entered against Rodney Chin on all charges before the Court and the defence furnished with a list of contracts given to Chin’s Construction Limited between the period 1992 – 2008. 

The request for disclosure was again made in Open Court for information concerning the circumstances under which a Nolle Prosequi was issued and Rodney Chin becoming a Crown Witness.  The Director of Public Prosecutions responded that she had disclosed all the material made available to her in hand written notes by the Police in their investigation.

NON-DISCLOSURE
15.      The Accused, in an effort to obtain disclosure took the matter to the Constitutional Court.  There, redress was denied on the basis that remedy was with the Resident Magistrate and furthermore, the Director of Public Prosecutions (D.P.P.) had categorically stated that there was nothing to disclose.  Subsequently, in the Court of Appeal on application for a stay of the trial pending the hearing of the Appeal, Morrison JA in refusing the stay, stated in his reasons that the D.P.P. “submitted that she had already made full disclosure to the Defence and that this was a “naked attempt” to delay the trial and to frustrate the process.

16.      The trial commenced on the 22nd June 2009.

17.      On the 12.04.2010, Mr Rodney Chin, under cross-examination said that he “met with the D.P.P. after I gave statement…met her and she interviewed me. This was in Mr Small’s office.  She asked me questions.  I call this an interview”.

18.      He further said that he had already given a statement, that the D.P.P. asked questions about the statement, that it “lasted half hour to forty-five minutes: half-hour and another ten to fifteen minutes” and that the D.P.P. made her notes.

19.      At no time does Chin speak of the Police who were present asking him any questions.

20.      Arising from this evidence of material hitherto not disclosed, the Order was made for disclosure on the 16th April 2010.  This Order has not been complied with.

21.      The Defence of Wright served a subpoena on the D.P.P. in an effort to obtain the information as to what transpired between the State and Chin.  The Magistrate Ordered that the D.P.P. remain out of Court during the evidence of Chin and/or any other witness speaking to the meeting in Mr. Small’s Chambers.  This lead to action initiated in the Supreme Court between the D.P.P. and the Learned Resident Magistrate and the forcing of an adjournment of this trial on the 13th April 2011 until the 3rd September 2013 in an effort by the D.P.P. to avoid the consequences of the subpoena.

22.      The Court of Appeal has communicated no decision to the Learned Resident Magistrate or parties impacted by the actions initiated by the D.P.P. to indicate that the Order for Disclosure is set aside or that the subpoena on behalf of Miss Wright’s Defence is invalid.  Hence,

a.    The D.P.P. continues to disobey the Order of the Learned Magistrate for disclosure.

b.    The D.P.P. continues to lead the prosecution in circumstances where she is under subpoena as a witness with relevant information important to the Defence;

c.     The D.P.P./witness remains in Court during the evidence of Chin and/or evidence from Superintendent Fitz Bailey and other witnesses into issues touching and concerning the meeting(s) in Small’s Chambers and matters touching and concerning Chin’s business as outlined in his testimony.

23.      The D.P.P. has a duty to disclose all relevant information in the possession of the Crown or its agents to the Defence.

24.      The D.P.P. has information as to the circumstances, discussions and agreements which led to criminal charges being dropped against Rodney Chin, a former Co-Defendant of the Accused, and him being called as a Crown witness against the Accused and this information is not disclosed.

25.      Senior Superintendent Fitz Bailey was instructed by the D.P.P. to be present at the Chambers of Mr Richard Small and to collect a statement(s): his evidence is that he had no role in the causation of this meeting and that he acted only pursuant to the instructions of the D.P.P.

26.      This failure to disclose should reasonably affect the decision of the Learned Resident Magistrate as to the Accused’s guilt or innocence.

27.      The witness Chin gave evidence tantamount to a confession of his own criminality, for which the D.P.P. has offered him immunity from prosecution by a Nolle Prosequi and the material which was not disclosed could have amounted to a Plea Bargain.

28.      This failure to disclose is a breach of the Accused’s constitutional right to a fair hearing and to the protection of the law pursuant to Sections 13(1), 13(2)(b), 13(3)(r) and 13(4) of the Constitution and to his right to be given adequate facilities for the preparation of his Defence pursuant to Sections 16(1) and 16(6)(b) of the Constitution of Jamaica.
PROSECUTORIAL MISCONDUCT
29.      The D.P.P., in response to requests within weeks of the meeting now said to be the 19th November 2008, told the Defence that there was nothing to disclose. She repeated this in person, in affidavits and through her representatives in the Resident Magistrate’s Court, the Constitutional Court and in Chambers at the Court of Appeal (see judgement of Morrison JA in Kern Spencer v D.P.P. & AG SCCA NO. 81/09, APP. NO. 121/09)

30.      The D.P.P. having participated in a meeting and furthermore in directing senior police officers in what steps to take pursuant to her instructions whilst having conduct of the matter, caused this information to be withheld by every person present and participating in these meetings. And what subsequent disclosure was made was done pursuant to Court Order and does not provide full disclosure but merely confirms the existence of material hitherto not disclosed and not intended to be disclosed, or which is lost on account of the passage of time.

31.      That in circumstances where the witness Chin has given an account of this meeting, the D.P.P. caused statement to be collected from persons present at the meeting inclusive of Snr. Supt. Fitz Bailey  pursuant to the Court’s Order: that said Snr. Supt. Bailey whilst the D.P.P. is present in Court as Counsel, gave an account contradicted by his own further statement as well as the evidence of Chin, but which accorded with the account given by the D.P.P. while she was standing as Counsel in the matter.

32.      That the D.P.P. has sought to contradict the witness Chin’s assertions as to what occurred in the meeting of the 19th November 2011, but refused to supply the information in a manner which may be called on by the Accused.

33.       That at all times the D.P.P. has treated her role as lead Counsel in this matter as being of more importance than the right of the Accused to a fair trial.

34.      That the D.P.P. in eliciting the evidence of Chin deliberately did so in a manner so as to avoid any information as to her role in his changed status (see evidence of the 4.1.2010), and did not disclose this fact when specifically dealing with the circumstances surrounding his coming to provide a witness statement whilst still an accused.

35.      That this failure/refusal to disclose is of such an egregious nature; deliberate, wilful and persistent, of material known only to the D.P.P. and the witness Chin in circumstances where she was participating in the investigative process, as to be prosecutorial misconduct sufficient to deny the Accused his right to a fair trial. The failure to provide details of the meeting or of the circumstances leading up denies the Accused information necessary for him to prepare and present his Defence.

36.      Certainly in circumstances where all witnesses from the Petroleum Corporation of Jamaica (hereafter PCJ) and Ministry of Information, Technology and Commerce (hereafter MITECH) with knowledge of the Cuban Light Bulb programme do not speak of awareness of improper payments and all documents relating to relevant companies and their bank accounts ascribe knowledge and control to Chin, and where the conversations are captured on the tapes suggest far more awareness and control than asserted by Chin in his Evidence-In-Chief; for the D.P.P. to continue with her disregard of the Court’s Order demonstrates disregard for the Accused’s Constitutional right to a fair trial.

Further, there is evidence tending to show that Chin was being investigated for other matters in which the D.P.P. may have been called upon to exercise her constitutional authority which on request was also denied disclosure.

37.      That the Constitution mandates that “no organ of the State” shall take any action which abrogates, abridges or infringes the rights of the citizen of the protection of his Rights and Freedoms (Sec. 13(1), 13(2)(b) and further Sec, 13(3)(r) which involves the right to due process as provided in Sec 16): The conduct of the D.P.P. infringes the rights of the Accused and constitutes misconduct.

38.      Sec. 13(4) indicates that Chapter III of the Constitution applies to all law and binds the Legislature, the Executive and all public authorities: the D.P.P. in the exercise of her authority must demonstrate regard for the laws governing Fundamental Rights and Freedoms of the Accused. This involves his right to a fair trial (Sec 16(1)), and to having adequate facilities for the preparation of his Defence. The conduct complained of flows directly from the actions of the D.P.P. and not from some other agent or person delegated by her.




DELAY

39.      The Accused was arrested on the 26th February 2008 and the trial commenced on the 24th June 2009.  Six years have passed since the commencement of this matter.

40.      The matter was adjourned on two occasions to facilitate the D.P.P. going to the Supreme Court to challenge Orders made by the Learned Resident Magistrate exercising her judicial discretion and authority in the course of this trial: these lead to delays of approximately 2½ years during which the Accused had to sit and abide the completion of processes impacting his trial and to which he had not been made a party.

41.      There have been numerous and persistent instances of adjournments which have been forced on account of non-disclosure and/or on account of the unavailability of Crown witnesses: save for 2 weeks when Counsel for the Accused was engaged in a matter in a Court of Superior Jurisdiction, every instance of adjournment was for non-disclosure on the part of the Crown.

42.      On every occasion that this matter has been listed before the Court the Accused has been present.

43.      The delay has caused witnesses to be complaining of loss of memory and for the Court to have to resort to notes because of faded memories and perceptions of the evidence being lost.

44.      The Accused has a constitutional right to a fair hearing within a reasonable time, Sec 16(1): the forcing of adjournments because of conduct attributable to the Crown has led to the denial of this right.

45.      The time consumed in this trial has surpassed any objective criteria of reasonableness: whatever the basis for adjournments, at no time did it spring from conduct attributable to the Defendant.

46.      The Accused seeks an Order that these proceedings be stayed because of the proven breaches of his Fundamental Rights and Freedoms as contained in the Constitution of Jamaica.




NO CASE SUBMISSION

1.         The Accused ought not to be called upon to answer to the charges contained in the informations 2788 – 92/08 as neither the necessary actus reus or the mens rea have been established in the evidence in proof of any.

2.         The witness Everald Orr testified that he was owed the sum of $13,822,416.84 for food supplied under the Cuban Light Bulb programme. He further indicates that he received payments which are evidenced in Ex 82 and 83. He caused the proceeds of these cheques to be converted to two U.S. currency cheques and further caused them to be deposited with OLINT. Thereafter he received no benefit from them; implying that they were lost with the collapse of OLINT.

3.         There is no evidence that these monies constituted criminal property.

4.         There is no evidence that the Accused benefited from these funds.

5.         The Crown sought to suggest inferentially that the monies touching and concerning Orr were “converted in an arrangement” involving the Accused when he opened an account at NCB in Santa Cruz, when,

                        i.         These are joint accounts used with his mother;

                       ii.         The witnesses from the bank gave account as to source of funds which has not been contradicted;

                     iii.         Everald Orr has not provided any link between the moneys used to open the NCB account in Santa Cruz and the funds that he received in settlement of his food bills.

6.         The witness Eldon Nembhard has given evidence that $3,000,000.00 he received was for road work that had been subcontracted to him by Chin’s Construction: that the work was in fact done and that there were records in support of this.

7.         At the highest the Accused acted as a courier to enable a citizen in his constituency who has provided services to receive a cheque in settlement of work actually done. There is no evidence to suggest that the $3,000,000.00 is criminal property, in fact, the contrary is proven by the evidence.




Re: Information 10678/08

The Accused ought not to be called upon to answer to this information as (a) there is no evidence that the Accused facilitated the engagement of UMDC as a project manager for the Light Bulb Project without observance of the government’s procurement guidelines for the purposes of obtaining an illicit benefit for himself and others as;

1.         Dr. Potopsingh testified that the Ministry of Information Technology and Commerce (hereafter MITECH) was the responsible Ministry.

2.         The then Minister of the Ministry of Technology testified that Petroleum Corporation of Jamaica (hereafter PCJ) had oversight and responsibility.

3.         Dr. Potopsingh was aware of what was happening through regular reports sent to the Board.

4.         Mr Henoy Russell testified that all invoices sent to the PCJ in relation to the programme were verified and payments made once the PCJ was satisfied that payments were due for services rendered.

5.         Mr Fitzroy Vidal was aware of the programme and attended meetings at MITECH chaired by the Accused in his capacity as the delegated State Minister and also in attendance were other representatives from MITECH, representatives from the PCJ, representatives from the Cuban Embassy and Miss Sherene Shakes of UMDC.

6.         That all persons who dealt with UMDC felt satisfied in doing so.

7.         No person(s) have been called to give evidence of the procurement guidelines to be followed and/or to testify that they were in fact not followed.

8.         That the blanket denial by the witness Chin of any knowledge without more, is not evidence of a failure to observe the government procurement guidelines.

9.         That there is absolutely no evidence that the Accused received any illicit benefit for himself and others through the programme.

10.      The evidence of Russell is that monies were paid for services rendered after verification was done by the PCJ.

11.      The D.P.P. has wilfully turned a blind eye to every person who, on the face of the records, is able to speak to the formation and/or operation of UMDC, save and except Mr. Chin. This includes Ms. Sherene Shakes, the admitted Manager of UMDC, known to persons at the PCJ and to Mr. Rodney Chin.

12.      There is no evidence of the process by which UMDC came to be project manager under the Cuban Light Bulb programme hence no adverse inference may be drawn in the face of this stark silence.

13.      Rather it would seem that in an effort to preserve the credibility of Chin, the D.P.P. has not called upon or produced any person performing actual duties on behalf of UMDC, and in so doing has not called any witness to provide direct evidence of the Accused’s role, if any, in “facilitating the engagement of UMDC” or of UMDC being relied on without observance of government procurement guidelines.

14.      In these circumstances when the evidence is so little and/or so unconvincing that it is insufficient to convict even if uncontradicted by the Defence, the Accused should not be required to state a defence.

Wherefore we humbly pray that:-

1.    No Case Submission on behalf of the Accused Kern Spencer be upheld.

2.    The Accused Kern Spencer be acquitted.