R v Brice
| Jurisdiction | Anguilla |
| Judge | Blenman, J. |
| Judgment Date | 11 June 2012 |
| Neutral Citation | AI 2012 HC 8 |
| Docket Number | Indictment 4 of 2011 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 11 June 2012 |
High Court
Blenman, J.
Indictment 4 of 2011
Mr. Horace Fraser and Ms. Patricia Harding for the defendant/applicant
Mr. Thomas Astaphan, Ms. Dawn Holder, Ms. Erica Edwards and Mrs. Serena Banks for the crown/respondent
Criminal practice and procedure - Application for permanent stay of indictment and prosecution of criminal charges.
This is an originating motion by Mr. Joseph Brice for the court to permanently stay an indictment and the prosecution of criminal charges against him. The motion is strenuously resisted by the Crown.
The originating motion was heard on the 6th and 7th of June, 2012 respectively, and on completion of the arguments I rendered an oral decision. It has now become necessary for me to produce the full reasons and I hereby do so.
The sole issue that arises for me to resolve is whether I should permanently stay the indictment and the prosecution of the criminal charges.
The Attorney General has preferred an indictment against Mr. Joseph Brice which charges him with two counts of theft contrary to section 242 as provided for by section 248(b) of the Criminal Code of Anguilla and eleven counts of transferring criminal property contrary to section 125(1) (d) of the Proceeds of Crime Act, 2009.
The trial was fixed for two to three weeks commencing on the 6th day of June 2012, during the criminal assizes.
On 24th May 2012, Mr. Brice filed an originating motion seeking a permanent stay of the indictment and the prosecution of the indictment. In an effort to expedite the hearing of the matter, the court directed that skeleton submissions together with authorities be filed by the parties on or before 4th June 2012.
Both sides have quite helpfully provided the court with skeleton arguments and the application was heard on the first day of the criminal assizes.
Mr. Brice's main complaint is that the entire procedure that has been adopted by the prosecution is prejudicial to his interest, abusive, oppressive and otherwise unfair to him; therefore the court ought permanently to stay the indictment and the prosecution of the indictment.
Mr. Brice says that he was first charged with the offences of theft contrary to the Criminal Code and while on bail for those two offences he was arrested by the police and charged in relation to the eleven counts of transferring criminal property in breach of the Proceeds of Crime Act, 2009.
Mr. Brice says that the court should not allow the indictment to proceed since there have been several abuses of the court's process by the Crown. Chief among these are: in relation to the counts of theft, there is no identity of the virtual complainant who made the complaint to the police in relation to the alleged theft from the companies. He says that this is fatal to the successful prosecution of the charges.
Secondly, he complains that the search warrant which authorized the search of his office was improperly utilised by the police to search his residence. The police took property from his residence which they still have in their possession.
Mr. Brice also says that he has been advised by counsel that the maximum sentence that can be imposed for an offence of theft contrary to the Criminal Code, if he is convicted, is 10 years. However, if he is convicted for an offence contrary to section 125(1) (d) of the Proceeds of Crime Act, 2009 it is 14 years for each offence.
Mr. Brice further complains that counts 3 to 13 of the indictment which charge him with transferring criminal property against the Proceeds of Crime Act, 2009 are nullities. They refer to conduct which occurred before the Proceeds of Crime Act, 2009 came into force and the law prohibits the retrospectivity of penal legislation. He therefore could not be properly prosecuted in relation to counts 3 to 13.
He says that in relation to the allegation of theft against St. Maarten Investments Ltd., he had full and lawful authority to invest sums of money on behalf of St. Maarten Investments Ltd. There is simply no evidence of theft as foreshadowed in the deposition.
In view of those complaints, Mr. Brice asked the court to stay the indictment and the prosecution of the offences with which he has been charged.
Other acts of abuse by the prosecution were evident, says Mr. Brice, such as when the prosecution objected to him being placed on bail in relation to the charges of transferring criminal property. He also states that the prosecution relied on hearsay evidence in order to obtain the committal order.
Also, Mr. Brice complains that during the preliminary enquiry the Crown suppressed an interview that he had given to the police and failed to disclose it to himself or to the court.
Importantly, he says that there was no cogent evidence of theft before the lower court and that the court allowed inadmissible hearsay evidence to be adduced. Mr. Brice says that he was sued by Regency Holdings Ltd. for the sum of US$950,000 alleged to have been stolen. He says that on 13th January 2009, a consent order was entered setting out the terms for the repayment of that sum to Regency Holdings Ltd., which sum he has repaid. He says that the repayment of the debt coupled with the fact that at the relevant time the money was transferred by him as a loan with the intention of repayment in mind negates the allegation of theft in law and that the prosecution has offered no evidence to negative the defence that the money was a loan.
In view of all the above allegations, Mr. Brice says that the Crown's prosecution of the offences on the indictment against him is oppressive and constitutes an abuse of the process of the court. He says that the Crown has manipulated the process of the court so as to deprive him of the court's protection and has acted otherwise unfairly towards him.
The Crown dispute that it has abused the court's process and argues that the court ought not to exercise its discretion so as to permanently stay the indictment or the prosecution of the criminal charges.
The Crown asserts that the charges against Mr. Brice and by extension his prosecution is lawful. They deny that they have acted oppressively in the prosecution of the charges. In addition, the Crown maintains that Mr. Brice will be afforded a fair trial.
Learned counsel Mr. Fraser argued that the court should stay both the indictment and the prosecution of the indictment on the basis that the Crown has abused the court's process. In support of his argument, counsel referred to R v. Feltham Magistrates Ex Parte Mohammed Rafiq Ebrahim v. DPP [2001] 2 Cr. App. R 23; Attorney General's Reference No. 1 of 1990; R. v. Horseferry Road Magistrates' Court Ex Parte Bennett [1993] 3 WLR 90; R. v. Kuanda Tuitt — Claim No. SLUHCR 2005/0041, together with Blackstone's Criminal Practice 2008.
Mr. Fraser argued that in order to sustain a charge of theft there ought to be evidence which indicates who was the virtual complainant. He says in relation to a company the appropriate person is the director or the secretary of the company. The failure of any of the officials of the company to initiate the criminal process by way of complaint renders the process invalid. In support of his argument, Mr. Fraser relied on Sir J. T. Ingham v. True Love [1880] 5 Q. B. 336; H. L. Bolton (Engineering) Co. Ltd. v. T. J. Graham and sons Ltd. [1956] 3 ALL ER 624; and Tesco Supermarkets Ltd. v. Nattrass [1971] 2 ALL ER 127.
Learned counsel Mr. Fraser said that counts 3 to 13 which charge Mr. Brice with transferring property contrary to the Proceeds of Crime Act, 2009 are nullities. He says that the allegations are that he committed those offences in December 2008. The Proceeds of Crime Act, 2009 was gazetted on the 17th of July, 2009 and became law on the 18th of July, 2009. Therefore, on the date when the alleged offences were committed they were not offences that were covered by the Proceeds of Crime Act, 2009. It is wrong for him to be charged under the Proceeds of Crime Act, 2009.
Mr. Fraser also said that section 41 of the Interpretation and General Clauses Act 125 of the Revised Statutes of Anguilla prohibits the charging for an offence in which the alleged criminal conduct occurred before the relevant law was in effect. He says that the counts which charge Mr. Brice with transferring criminal property are a nullity. In addition, Mr. Fraser argued that it was wrong for the Crown to have charged Mr. Brice for the offences of theft and that of transferring criminal property in relation to the same alleged unlawful transaction. This, he says, infringes the principle of double jeopardy.
Learned counsel Mr. Fraser said that there is no dispute that the alleged conduct would have amounted to offences under the Proceeds of Crime Act, 2004 (the preceding Act). However, he posited that it is unlawful for the Crown to charge Mr. Brice under the Proceeds of Crime Act, 2009 in circumstances in which the alleged transactions occurred on a date when the Act was not in force. Penal legislation cannot be given retrospective effect.
Mr. Fraser said that in relation to the offence of theft in relation to the company, there is no evidence that the secretary or any director of the company made the complaint to the police. It is essential that a person who has the authority to make the complaint does so. Failing which, the criminal charge cannot stand. In support of his argument, Mr. Fraser referred to H. L. Bolton (Engineering) Co. Ltd. v. T. J. Graham and Sons Ltd. [1956] 3 ALL ER 624 and Tesco Supermarkets Ltd. v. Nattrass [1971] 2 ALL ER 127.
Learned counsel Mr. Fraser, like Mr. Brice, asserts that in relation to the counts of theft, it...
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