Thursday, March 27, 2014

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.




















































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