Despite his apparent acceptance that “any prosecution under the 1999 Act is unlawful and (2) any further of prosecution of Mr. Cassell relating to activities in 2007 and 2008 would be an abuse of process”; and if that is so according to Attorney David Dorsette who in his submissions said, “If we are right, the prosecution cannot “leave now to come back later” to further harass and vex Mr. Cassell, why did he take the action of directing the prosecution to “go and come again”?
In the high court over the past few weeks past, Warren Cassell was summoned to respond to a sufficiency hearing following when in February 2012 he and his company Cassell & Lewis Inc. were convicted of 16 offences of Conspiracy to Defraud (multiple counts), Procuring the Execution of a Valuable Security By Deception (multiple counts) and Money Laundering (one count).
The Court of Appeal quashed the money laundering conviction and ordered a retrial. On or about July 13, 2016, the Privy Council quashed the order for retrial of the Money Laundering Count, quashed the 15 convictions of the Appellants, but further or later said, “The parties are now agreed that an order for a re-trial is inappropriate since no trial can properly take place on a count laid under the 2010 Act, whereas the Crown is free to charge a count laid under the 1999 Act without the necessity for an order for re-trial.”
In 2013 the ECSCourt of Appeal quashed the conviction but said that because the matter was brought under the wrong ‘law’ the matter should be retried under an earlier act dated before the offences were alleged to have happened (1999 and 2007/8 respectively) – “We are also of the view that the prosecution can be conducted without unfairness to, or oppression of, the defendant…”
Now the Director of Public Prosecution DPP has brought back the charge of ‘money laundering’ arising from the charges in 2012.
What seemed a simple hearing with Attorney David Dorsett representing Cassell ran over the course of the entire week, with Justice Morley seemingly torn and not giving a decision, finally putting that off for today, Friday, October 25, 2019, the day he would also give a determination on arguments re a Constitutional motion brought by Vickie Locker. (see: Vickie Locker challenges the Deputy Governor’s Election Guidelines so she can contest the General Elections on Nov 18.
Dorsett in his submission for the matter to be stayed and dismissed (discontinued) presented an application to the court, referencing the Montserrat Constitution, about not retrying someone for the same charge etc.; among others; that the court exercise its jurisdiction to stay proceedings for abuse of process…, to protect the integrity of the criminal justice…no question of balancing interests; the matter ‘does not undermine public confidence in the criminal justice system and bring it into disrepute.
The crown represented by Mr. Henry Gordon, a British lawyer out of the UK that has been serving in the DPP’s office, was challenged as to the delay in bringing the retrial charge, two years after the last opportunity to do so, going back to 2013 and since the Privy Council’s determination in 2016. His continued response was, the crown had ‘no explanation’; citing the public interest and the fact that the appellate courts had said they ‘should’ which really as the judge agreed was, ‘could’ bring the charges again.
A ruling on the matter after several hearings by Judge Morley, including Dr. Dorsette in Antigua, appearing on skype, after his initial appearance on the 14th in Montserrat, was expected today.
But in that ruling Justice Morley had this to say in his final long 30 clause paragraph: “In sum, it is with some regret I must say to Cassell, known to this court and where, in fairness he has done some good work, he must be further tried, though I doubt he will face further custody; however, the proposed indictment must have an appropriate foundation count for it to proceed or it shall be quashed as bad for duplicity.
Having said this, “To my mind the delay is acute, to agitate against further trial, but so too is the public interest, with so many affected, to agitate in favour of it??? And then after he spent much time finding reasons not before him for the prosecution why that answer of “not having any explanation” as to why they did not bring the charges to include the ‘foundation charge’ after their first opportunity over six years ago.
It is not certain how this clause is intended, but it is clause 14 seemingly addressing the matter of delay to which the prosecution had no explanation. “Addressing these fundamentals, and borrowing their words, I am of the view that ‘on balance’ ‘the administration of justice is undermined’ by the prosecution taking so very long to file these simple indictments, being matters of lesser seriousness, so that the delay is ‘unconscionable due to prosecution inefficiency’,” prolonging exposure of witnesses to proceedings, during which the liberty of defendants has been infringed, so much so that this inefficiency ‘offends the courts sense of justice and propriety’, ‘having an inescapable inordinate and duty to secure fair treatment for those brought before’ the court.”
The foundation count he refers to is in clause lies in this: “The Crown must specify precisely what the criminal conduct is, and prove it. This should and can be done by placing on the indictment a foundation count, or counts (though preferably just one)” where he is speaking about the PC quashed counts of misconduct. “His convictions were merely quashed,” Morley said using a legal term “autrefois acquit” which he says does not arise as “Cassell was neither convicted nor acquitted…”
vWith much more in that ruling on questionings, the answers suggest confusion. Meanwhile defendant Cassell can wait to see if the apparently confused and hesitant persecutors will see the ruling as saying there is much futility, or another long wait to learn whether an attempt will be made to prosecute him again on the matter/s, by appealing the ruling, as they see much to support that, but which can take up much time, energy and as his attorney puts it, “come back later” to further harass and vex Mr. Cassell”.
