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: -
- JAMAICA CONSTITUTION
- FAIRNESS IN CRIMINAL TRIALS
- 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offence he shall, unless the charge is withdrawn, be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: -
- The Personal Assistant assisted in political matters.
- A Personal Assistant is not a public servant.
- A Personal Assistant is not permanently employed.
- As Permanent Secretary she had no supervising role over any of the Personal Assistants of the Minister of State.
- Personal Assistants take instructions as to what to do from Minister (Junior or Senior).
- If she gave instructions to a Personal Assistant it need not be carried out.
- 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.
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