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Astaphan tony

High Court reserves judgment in motion of no confidence case

BASSETERRE, St. Kitts, Apr 11, CMC – The High Court has reserved judgment, pending the submission of written statements within 28 days, on the motion of no confidence that dates back to the last administration of then prime minister Dr. Denzil Douglas.

Opposition efforts to have the motions tabled in parliament were rebuffed for more than two years with the then government arguing that the Constitution did not offer a fixed time for a motion of no confidence to be heard.

The Speaker of the National Assembly Curtis Martin had also instituted legal proceedings when the Opposition sought to withdraw the motions on the grounds that he wanted the High Court to pronounce on its jurisdiction over the Speaker of the National Assembly.

The “Team Unity” government of Prime Minister Dr. Timothy Harris said that matter was being pursued in the court because of its great public and questioned whether the rights of parliamentarians had been infringed and the constitution breached.

Astaphan tony
Anthony Astaphan

Oral arguments were heard last week Thursday with Trinidadian Senior Counsel Douglas Mendes appearing on behalf of the government, while Dominican Senior Counsel Anthony Astaphan appeared on behalf of Martin.

 “The then opposition, Mark Brantley I think it was and then Mr. Timothy Harris presented motions of no confidence to the House for debate and they were not put forward promptly or as they would have required and litigation started.

“Once litigation started the then Speaker of the House said it’s a matter of public interest for the court to have a ruling and for the parliament be guided by a ruling of the court on the status of a motion of no confidence, on the right to bring a motion of no confidence and on the status and content of the Standing Orders,” Astaphan said on WINNFM radio here.

He said as a result, “it took quite a bit of time to get there because as you know there were several skirmishes taking place.

“The long and short of it is, is whether as a matter of constitutional law that once a motion of no confidence is presented to the House, subject of course to ensuring that it is in order, it must be debated and presented as a matter of urgency or priority given regard to the exigencies of the government’s business or whether or not the standing orders need to be amended to give full effect or to make fully effective, the right to bring a motion of no confidence.

“It is strikingly odd in all of these standing orders that a Motion of Privilege must be heard urgently, the motion presented by a Speaker must be heard and presented for debate once it is seconded by a somebody in the House, but a motion of no confidence which could lead to a change of government has no presence, no specific expressed presence in the standing orders to give effect to that constitutional obligation and consequence,” he said.

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Court

Police officer freed of murdering pregnant woman

KINGSTON, Jamaica, Apr 4, CMC – A police corporal has been freed of murdering a 25-year-old pregnant woman who was shot and killed during an attempt to arrest here for using obscene language in  September 2012.

The incident had sparked two days of protests in the vicinity of the Yallahs Police Station, a suburban parish in the southeasten section of the island,  where the shooting occurred on September 1.

CourtThe seven-member jury late Monday acquitted Dwayne Smart of the murder and manslaughter in the death of Kay-Ann Lamont, who was eight months pregnant at the time, He was also found not guilty of wounding with intent in the shooting of Lamont’s sister.

The prosecution had alleged that Lamont was being taken into custody for using expletives when she was shot in the head by Smart. There was also evidence, during the four-week trial that her sister was shot while rushing to her defence.

However, Smart, through his attorney, argued that the killing was an accident. He also contended that he was facing a hostile mob opposed to his decision to arrest Lamont. He said that during his attempt to arrest her, a scuffle ensued and they both fell to the ground. Smart said that he tripped and his firearm accidentally went off as he attempted to get back on his feet.

Lamont’s sister, Shemean Lamont, who testified that she witnessed the shooting, said “I don’t understand how this man can shoot a pregnant lady and get away with everything.

“This is not right, this is not true. Right now I don’t think I can explain this,” she told reporters.

Attorney Dorothy Lightbourne, QC, said that the family has filed a civil suit against the State for negligence.

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court rul

Criminal charges against three opposition legislators dropped

ST. JOHN’S, Antigua, Mar 28, CMC – Three members of the main opposition United Progressive Party (UPP), including its leader and former finance minister Harold Lovell, were freed on Tuesday after the charges were dropped against them at a magistrate court here on Tuesday.

Jubiliant UPP supporters chanted and celebrated as Lovell, former education minister Dr Jacqui Quinn and the St. Phillip South Member of Parliament, Wilmoth Daniel, emerged from the court building.

court rulThe trio had been charged with larceny, fraudulent conversion and corruption in relation to the three Daewoo buses worth more than EC$600,000 (One EC dollar =US$0.37 cents) that had been donated to the former UPP administration by Japan.

The prosecution had alleged that the trio converted the buses for personal use and had them registered in their names while they were in public office.

The UPP had labelled the charges as part of the “continued harassment and political persecution of former members of its administration” and accused the ruling Antigua Barbuda Labour Party (ABLP) administration of orchestrating the charges on the eve of its second anniversary on June 12  last year, to deflect focus from its “dismal failures”.

The charges were first filed in the St John’s Magistrates’ Court on May 30, 2016 and when the three accused appeared before Magistrate Conliffe Clarke on Tuesday, he ruled the defendants did not have a case to answer.

He said based on how the charges were laid there were no charges for them to answer.

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High Court Charges reduced to one against three result in a walk and two guilty pleas

by B. Roach

Following Customs charges of fraudulent evasion that had to be withdrawn against a father and son in the High Court assizes last week, three young men facing similar Customs charges with numerous counts of charges of fraudulent evasion, conspiracy to defraud and theft of items from the Customs warehouse.   

Jervaine Greenaway of St. Johns faced nine counts at the star of the trial but eventually pleaded guilty to one count of fraudulent evasion of customs duty out of the nine varying indictable charges. These were four counts of fraudulent evasion, three counts of conspiracy to defraud, and two counts of theft. He was fined three thousand dollars ($3,000.00) to be paid in four months, failure to pay which he will face spending six months in prison.

Greenaway was represented by Attorney Warren Cassell, who at the beginning of the trial successfully argued against the numerous counts. He was charged jointly with two others, had the remaining counts dropped which were charges to include two counts of dishonestly appropriate property of the Montserrat Port Authority, counts of knowingly acquiring possession of certain goods which have been unlawfully removed from a warehouse, counts of knowingly acquiring possession of certain goods which are chargeable with duty.

Director of Public Prosecution D.P.P. Oris Sullivan represented the crown in the matters.

Meantime Rodney Brown of Davy Hill who was also jointly charged with Greenway and Keston Riley of Lookout walked when the prosecution offered no evidence with regards to his involvement, the judge ruling that charges against Brown cannot be resurrected.

Veteran Attorney at Law David S. Brandt represented both Brown and Riley, the latter on an indictment of similar charges. But Riley pleaded guilty to one charge of fraudulent evasion of customs duty, benefiting from a similar submission from Attorney Cassell. He is expected to be sentenced on March 31, following consideration of a character report by Justice Morley, the judge in the hearing..

Unlawful sex trial postponed

Meanwhile in another matter in the High Court the virtual complainant in the matter the Queen versus Glenworth Prince on a charge of having unlawful sexual intercourse with a girl under the age of sixteen years continued with her evidence in chief. Justice Morley ordered the case be stopped and that it be continued at the next sitting of the high court with a different jury. Attorney Brandt appeared for Mr. Prince.

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PAJ

Media group expresses concerns over new cybercrimes legislation

KINGSTON, Jamaica, Mar 21, CMC – The Press Association of Jamaica (PAJ) Tuesday expressed concerns about aspects of the Cybercrimes Act that deal with “malicious communication”.

In a statement, the PAJ said that w the Defamation Act 2013 repealed criminal defamation and Jamaica was hailed for this significant legislative advance by groups like the International Press Institute (IPI).

It said freedom of expression is a fundamental right that, like many others, is subject to restrictions.

PAJ“Those restrictions include the law of defamation to protect the reputations of others. These are matters for the civil courts. Restrictions are also often placed by criminal law on types of speech that incite violence, or are threatening in nature, for example.”

But the PAJ noted that criminal defamation laws that penalise statements that injure reputation are understood by freedom of expression advocates all over the world to be an enemy of freedom of expression, to have a chilling effect on free speech, and to facilitate the repression of criticism by governments.

The PAJ said that when Jamaica’s Cybercrimes Act was being reviewed, representatives from the police and the Office of the Director of Public Prosecutions recommended the inclusion of cyber defamation as an offence.

But the media group said that together with the Media Association of Jamaica (MAJ) they “strongly opposed” the move adding “  we were of the clear understanding that the Joint Select Committee reviewing the legislation fully appreciated the negative consequences of attempting to reintroduce criminal defamation, albeit to apply in cyberspace.

“Indeed, on the face of it, section 9 does not appear to allow for charges for statements that may be defamatory.”

PAJ said that recent arrests by the police, on the facts available, make it appear that the police are interpreting the legislation as having re-introduced criminal defamation by the back door.

It said that the section states that a person commits an offence if that person uses a computer to send to another person any data -whether in the form of a message or otherwise- that is obscene, constitutes a threat or is menacing in nature and with the intention to harass any person or cause harm or the apprehension of harm to any person or property….”

The media group said that the penalty in a Parish Court can be a fine of up to four million Jamaican dollars (One Jamaican dollar =US$0.008 cents)  or four years imprisonment, or five million dollars or five years in jail in the case of a second offence or if “damage” is caused.

“Before the Circuit Court the penalty is a fine and imprisonment for up to 10 years, or up to 15 years if “damage” is caused, or the penalty is up to 20 years in the case of a second offence.”

The PAJ recalled that in one recent case, the Ministry of National Security reported that a woman was charged under the section after she “posted pictures in social media claiming that her ex-boyfriend is wanted for rape, assault and murder.”

In another case, a women’s rights advocate was arrested after posting on social media sites the names of persons alleged to have carried out various sexual assaults.

“The allegations in each case relate to what would, offline, be matters for the civil courts through the law on defamation, and could not be subject to any criminal charge. These cases are before the courts, which will decide whether the offence detailed in section 9 is made out in these specific cases.

“However, we do not believe it serves the public interest for us to remain silent and wait for court rulings which may take several years, and which in any case, may not prevent continued arrests of this type,’ the PAJ said.

It said this will entail arrested persons being exposed to the trauma of arrest, and force them to spend time, and perhaps significant sums of money to defend themselves.

“Making arrests for what are essentially matters for the civil courts places Jamaica on a steep, slippery slope where freedom of expression is at risk. We do not believe this was the intention of the legislature.

We therefore call on the Jamaican legislature to stand by the principled position by which it abolished criminal defamation.

“This may necessitate the amendment of section 9, and introducing words to make it clear that actions which would comprise defamation offline, cannot be caught by the section,” the PAJ said, noting it is also  possible that the Ministry of National Security” may wish to ask that a legal opinion on the interpretation of section 9 and the elements of the offence be prepared for the police to help guide their actions from here”.

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Two charged in the death of a police woman

 
PORT OF SPAIN, Trinidad, Mar 20, CMC – Two persons, including a 36-year-old woman, will return to court on April 18 after they were charged with murder and illegally disposing of the body of woman police officer Nyasha Joseph, whose body was fished out of the sea last week.

Melissa and Kenneth Browne, (not relatives) appeared before Chief Magistrate Marcia Ayers Caesar in the Port of Spain Eighth Court on Monday, less than 24 hours after the Office of the Director of Public Prosecution (DPP) had given police the go-ahead to charge them.

court rulKenneth Browne, 36, is charged with knowingly assisting in the murder of the police officer illegally disposing of a body, while Melissa Browne, 36, charged with murdering WPC Joseph sometime between March 8 and March 16, at Sea Lots, just on the outskirts of the capital. She was not required to plead as the charge was laid indictably.

The police woman had been reported missing on March 8, and her body was found by a fisherman in Gulf of Paria on March 16. The cause of her death could not be determined by the pathologist.

Police said that the accused are not married but have a relationship.

Meanwhile, defence attorney Criston J Williams told the court that he had written to the Commissioner of Police and the head of the Police Complaints Authority (PCA) requesting an investigation into the conduct of the police officers during their probe.

He said the officers used unfair interrogation techniques and were disrespectful to the lawyers representing the accused.

Williams said that when he and other attorneys attempted to meet with the accused during the investigation, the officers resisted and claimed that one police officer placed his hands on Williams in an attempt to push him away.

Williams said his clients’ fundamental rights had been breached.

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Killer jailed for 35 years

HAMILTON, Bermuda, Mar 15, CMC – A 25-year-old man has been sentenced to 35 years in jail after he was convicted of murdering a fellow Bermudian outside a popular sports club in 2015.

Puisne Judge Charles-Etta Simmons said Shantoine Burrows showed “some premeditation” in committing the murder of Rickai Swan, 26, and displayed the “mind-set of a person intent on killing”.

court rulShe described video capturing the murder played during his trial as “chilling”.

Swan was gunned down outside the Southampton Rangers Sports Club — a team he grew up playing football for — in October 2015.

Burrows must serve a minimum sentence of 25 years for the murder and the judge said his 10-year sentence for use of a firearm in committing the murder does not start until after the 25 years.

Burrows was convicted last October of the fatal shooting of Swan, who was socialising with friends outside of the club.  A jury found Burrows unanimously guilty of the charges last year and he was remanded in custody. He was also found guilty of injuring Damiko Gibbons.

Crown counsel Nicole Smith described the murder as a “public execution”, which displayed “no mitigating circumstances”.

She described Burrows as “not a man of good character”, devoid of respect for the law or remorse for his crime.

But in addressing the court, Burrows maintained his innocence.

“I still stand before you an innocent man,” he said, adding “justice wasn’t served.”

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Former CL Financial executives in court over loan repayment

PORT OF SPAIN, Trinidad, Mar 15, CMC – A High Court judge will on May 16 rule whether or not the former chairman of CL Financial, Lawrence Duprey, can change his defence in a matter in which he is being sued for failing to pay loans totalling TT$5.1 million (One TT dollar =US$0.16 cents) to a former employee.

Justice Frank Seepersad has also given the attorney for Duprey until March 28 to file submissions in support of his client’s move to change his defence after initially accepting liability in the matter.

court rulFormer government minister and senior CL Financial executive, Carlos John, is suing Duprey alleging that he is owed the money which he loaned to his former boss.

CL Financial is the parent company of Colonial Life Insurance Company (CLICO) that received billions of dollars in a bail out by the Trinidad and Tobago government a few years ago.

On Tuesday, when the lawsuit came up for hearing before Justice Seepersad, Duprey’s lawyer Michael Coppin indicated that his client wanted to withdraw his initial position of having accepted liability but not quantum.
Coppin said his client’s defence is based on the statute of limitation, while Industrial Commercial Development (Trinidad) Limited – which John is also suing – has amended its defence on a breach of contract principle.

But the judge questioned whether Duprey can now withdraw his defence, saying he is not aware of any provision under the Civil Proceedings Rules to do so.

“It cannot be that the first defendant can just say, ‘Oops. I want to withdraw my defence’,” Justice Seepersad said, adding also that the “courts must jealously guard its processes against abuse of process.

“You have to convince me that that course of action is proper. This court is moving on as if there is an admittance of liability,” Justice Seepersad said, informing the attorneys for both men that they should be present in court when the matter next comes up for hearing.

In his lawsuit, John, said that in 2012, he provided Duprey, on various occasions, with the funds requested and that there was an oral agreement between them for Duprey to repay these loans. John also alleged that Duprey used ICDL as a shell company to avoid personal liability.
John said he lent Duprey TT$5,166,125 and used his property to secure the amounts and that he was expected to have been repaid in October 2013.

John said he has so far received just over half a million dollars between 2015 and 2016.

Duprey admitted that there was a series of agreements, over time, between himself and John for different sums of money but does not admit to owing his former employee the amount being claimed.

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15-year-old on murder charge

PORT OF SPAIN, Trinidad, Mar 14, CMC- A 15-year-old boy is due to re-appear in court on March 27 after he was charged with the murder of a retired member of the Trinidad and Tobago Defence Force during the Carnival celebrations.

court rulThe boy, appeared before Deputy Chief Magistrate Maria Busby Earle-Caddle in the Port of Spain Eighth Magistrate’s Court on Monday charged with killing 56-year-old Calvert James, who died on February 27, Carnival Monday, from multiple stab wounds.

The retired soldier was killed during an incident on the outskirts of the capital. The Director of Public Prosecution, Roger Gaspard SC, on March 11, gave instructions to charge the teenager with murder.

The teenager, who cannot be identified because of his age as he deemed a minor by law, has since been remanded to the St Michael’s Boys Rehabilitation Centre.

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Dennis Byroon

CCJ President says Grenada referendum defeat should encourage further support for regional court

PORT OF SPAIN, Trinidad, Mar 10, CMC – President of the Trinidad-based Caribbean Court of Justice CCJ), Sir Dennis Byron Friday dismissed suggestions that the results of the Grenada referendum represented more evidence that the regional court is not fit to replace the London-based Privy Council as the region’s final court.

Grenadians voted to reject not only the CCJ, but all the other initiatives that the Keith Mitchell government had placed before them in a referendum on November 24. Apart from the CCJ they also rejected a fixed date for general elections as well as term limits for the prime minister and the appointment of a leader of the opposition in Parliament.

Dennis Byroon
Sir Dennis Byron

Addressing the 9th Annual Caribbean Court of Justice International Law Moot Court for 2017, Sir Dennis said that he was disappointed unlike two years ago, when he was in a position to announce the accession of another Caribbean country to the Appellate Jurisdiction of the CCJ.

He told the audience that the number of Caribbean Community (CARICOM) states having relinquished the Privy Council in favour of acceding to the CCJ remains at four, namely Barbados, Belize, Dominica and Guyana.

Sir Dennis said that in the Grenada referendum one of the amendments proposed at that plebiscite was the replacement of the Privy Council by the CCJ.
“The final tally on that matter was 9,639 votes or 43.27 per cent for as against 12,635 votes or 56.73 per cent against. The naysayers interpreted this to be yet another rebuff to the CCJ, more “evidence” of the Court’s unfitness to replace the Privy Council.

“We in the Court do not quite see it that way. We interpret this as an incitement to work harder to make the Court more attractive to the Caribbean polity. We appreciate that there is a quantum of both misinformation and disinformation abroad about the Court.

“We understand that the most effective way to neutralise that is through continued good performance and ensuring that the news gets out about it. We understand that only by demonstrating what we are worth in a manner that is visible to the public – that we will woo a majority of support to our side.”

But he said the presence of the eight debating teams from the eligible ten CARICOM institutions, is tremendously heartening and a great source of encouragement for the Court.

“You are the testimony that there are still great things to come for the Caribbean Court of Justice, and by extension, the entire Caribbean region, of course,” he said, adding that since he assumed office one of the high points of his tenure has been the annual moot.

“It gladdens my heart to observe the enthusiasm, the maturity and the rigour with which our young law students have tackled the moot briefs. The good news is that however chancy the present circumstances of the CCJ may seem, the sheer energy and endeavour you invest into this annual exercise virtually guarantees brighter days ahead for the Court.

“It is my conviction that that is exactly what is furnished by your teams participating so wholly and positively in the annual moot. By dint of that very participation, through the verve and energy that characterise your youthful yet learned approach, you endow the Court with promise.”

The CCJ, established in 2001 to replace the Privy Council, also serves as an international tribunal interpreting the Revised Treaty of Chaguaramas (RTC) that governs the regional integration movement. It has both an Original and Appellate Jurisdiction, with most of the CARICOM countries being signatories to the Original Jurisdiction.

Sir Dennis said that the CCJ is the “Keeper of the Seal of the CARICOM Single Market and Economy” that allows for the free movement of goods, skills, labour and services across the 15-member grouping.

“A thorough and comprehensive knowledge of the Revised Treaty of Chaguaramas by the Caribbean legal fraternity is a sine qua non of the development and strengthening of the CSME. This annual moot provides young attorneys-at-law with a sterling opportunity to comprehend the ramifications and wherewithal of the RTC and paves the way for the widening of its scope and development.”

He said that the responsibilities of the CCJ with regard to the CSME are enormous. Recalling the writing of the former CCJ judge Justice Duke Pollard, that “the rights and obligations created by the CSME are so important and extensive, relating to the establishment of economic enterprises, the provision of professional services, the movement of capital, the acquisition of land for the operation of businesses, that there is a clear need to have a permanent, central, regional institution to authoritatively and definitively pronounce on those rights and corresponding obligations”.

Sir Dennis told the debaters that that their “delving into the inner workings of the RTC and thrashing out an Original Jurisdiction matter before this very CCJ does more than provide you with an opportunity to hone your adversarial skills.

“Through the very process of your investment and your praxis, the Court itself is imbued with a greater strengthening of its ethos, of its armour, of its structure and is better fortified assuring that leadership role,” he said, adding that “ by dint of your involvement in this exercise, you validate the Caribbean Court of Justice in its role in the van of the development of Caribbean jurisprudence.

“You lift us up. You demonstrate that the Caribbean region is no less creative, no less responsible, no less talented than any other. You make us all proud – that fact I commend to your hearts.”

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