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.
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:
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.
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