Finton De Bourg Claimant v (1) Chief Magistrate (2) DPP (3) Attorney General Defendants [ECSC]
| Jurisdiction | Grenada |
| Judge | Ellis, J. |
| Judgment Date | 23 August 2012 |
| Judgment citation (vLex) | [2012] ECSC J0823-1 |
| Court | High Court (Grenada) |
| Docket Number | CLAIM NO. GDAHCV2011/0278 |
| Date | 23 August 2012 |
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. GDAHCV2011/0278
Mr. Cajeton Hood for Claimant
Mr. Darshan Ramdhani, Solicitor General for First and Third Defendants
Mr. Christopher Nelson, Director of Public Prosecution in person
By Amended Fixed Date Claim Form filed on the 24 th November 2011, the Claimant claims as against:
The First Defendant:
i. A declaration that the decision of the First Defendant in committing the Claimant to stand trial at the Criminal Assizes is unreasonable, irrational, based on irrelevant considerations and/or reached in disregard of relevant considerations
ii. An order of certiorari to remove into this Court and to quash the decision made by the First Defendant to commit the Claimant to stand trial for the offences of fraudulent appropriation of property contrary to section 72 of the Proceeds of Crime Act and the Falsification of Documents contrary to section 275A 1 (a) and (b) of the Criminal Code.
iii. Costs of this action
iv. Further and other relief as deemed fit by the Court.
The Second Defendant:
i. A declaration that the decision of the Second Defendant in instituting or causing to be instituted, continuing, failing or refusing to discontinue criminal proceedings on indictment against the Claimant for the charges laid against the Claimant pursuant to section 72 of the Proceeds of Crime Act and the Falsification of Documents contrary to section 275A 1 (a) and (b) of the Criminal Code is unreasonable, irrational, based on irrelevant considerations and contrary to law.
ii. An order of prohibition to prohibit the Second Defendant from proffering any indictment against the Claimant to stand trial at the Criminal Assizes of any other court with respect to the charges laid herein nor any charge which might be laid as a result of any or all of the facts which were presented before the First Defendant at the Preliminary Inquiry which was concluded on May 23,2011.
iii. Costs of this action
iv. Further and other relief as deemed fit by the Court.
The Third Defendant:
i. A declaration that the decision of the Second Defendant in instituting or causing to be instituted, continuing, failing or refusing to discontinue criminal proceedings on indictment against the Claimant for the charges laid against the Claimant pursuant to section 72 of the Proceeds of Crime Act and the Falsification of Documents contrary to section 275A 1 (a) and (b) of the Criminal Code is unreasonable, irrational based on irrelevant considerations and contrary to law.
ii. An order of prohibition to prohibit the Second Defendant from proffering any indictment against the Claimant to stand trial at the Criminal Assizes of any other court with respect to the charges laid herein nor any charge which might be laid as a result of any or all of the facts which were presented before the First Defendant at the Preliminary Inquiry which was concluded on May 23,2011.
iii. Costs of this action
iv. Further and other relief as deemed fit by the Court.
The Claimant filed an affidavit in support of Claim Form on 24 th November 2011 in which he inter alia deposes that:
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1. That he is the founder of Capital Bank International Ltd (the Bank) a private limited liability company incorporated under the Companies Act of Grenada. At the material time he owned approximately 20% of the issued share capital of the Bank.
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2. Cap Bank was placed under the control of a receiver on 14 th February, 2008 by the then Minister of Finance. On 7 th May 2008, the Supreme Court in Grenada ruled that this appointment was unlawful and that the Bank should be returned to its directors and shareholders.
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3. The Minister of Finance filed an appeal against this decision and sought a stay of execution of the Court's order pending the determination of the appeal. 1 A stay was granted on 8 th May 2008.
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4. On 14 th May 2008, he was detained, arrested and charged with three counts of fraudulent breach of trust contrary to section 278 of the Criminal Code. A fourth count of fraudulent breach of trust was laid on his first appearance before the Magistrate on 19th May 2008.
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5. He was eventually granted bail in the sum of one million dollars. He was required to surrender all travel documents and to report to a police station twice weekly. He was forced to remain in custody for five days because he
was unable to promptly secure the necessary sureties and cash bond by the 19 th May 2008. -
6. On 12 th June 2008, the Director of Public Prosecutions filed a nolle prosequi in relation to all four charges against the Claimant and declared publicly that he had found that there was insufficient evidence to lay charges against the Claimant for which he had been arrested.
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7. The Civil Appeal filed by the Minister of Finance in the receivership proceedings was listed to be heard on 14 th July 2008. It was preceded by a general election in Grenada which saw a change of the Government and appointment of a new Minister of Finance and Attorney General. On 18 th September a consent order for discontinuance of the Appeal was concluded and filed in the Court Registry.
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8. On 18 th September 2008, the Minister of Finance also revoked the Bank's banking licence and re-appointed a receiver to the Bank.
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9. On 29 th September 2008, the Bank challenged the validity of this second appointment and sought interim declaratory relief. 2 This Claim was dismissed on a preliminary point in a decision which was delivered in February 2009. The Bank appealed this decision to the Court of Appeal which ordered that the matter be referred back to the High Court to be case managed for trial.
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10. On 24 th March 2009, he was re-arrested and six fresh charges were laid against him. The facts used to ground the new charges were essentially the same as those in the possession of the State when the first charges had been laid. Exhibit "FDB- 4" sets out the 6 counts: Count 1 and 6 under section 72 of the Proceeds of Crime Act — Fraudulent Appropriation by a Director or monies belonging to Capital Bank International; Counts
2, 3 and 4 under section 275 A (1) (a) of the Criminal Code — wilfully and with intent to defraud falsifying the minutes of the Board of Directors of Capital Bank International; Count 5 under section 275 A (1) (b) the Criminal Code — wilfully and with intent to defraud making a false entry in the account records of Capital Bank International. -
11. At the close of the Prosecution's case his attorney submitted to the Magistrate that there has been a clear abuse of the criminal process and that insufficient evidence had been led to justify the his committal on any of the charges and argued that there was no case to answer.
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12. On 23 rd May 2009 the First Defendant committed him to stand trial on all charges. A written ruling was rendered by the First Defendant in which she overruled the no case submission.
There were three affidavits filed on behalf of the Defendant.
In an affidavit filed on 26 th October 2011, Sergeant Sheldon Thomas, a member of the Royal Grenada Police Force deposes to the fact that at the time when the first criminal charges were laid against the Claimant, the investigating officer did not appreciate the legal point that monies deposited into the Bank, did not create a trustee relationship between the Bank and its depositors. Consequently there could be no fraudulent breach of trust committed under section 278 of the Criminal Code. Once the Officers received advice from Office of the Second Defendant and it was recognised that the charges were legally flawed, the criminal proceedings were immediately discontinued in order to minimize any prejudice to the Claimant.
Sergeant Thomas also states that by the time that the nolle prosequi was filed, the Claimant had appeared in Court only once on a bail application and that the Preliminary Inquiry had not commenced.
He states that the matter was subsequently reviewed by the Office of the Director of Public Prosecutions who assigned Counsel to guide the investigation which continued over a period of nine months. On 24 th March 2009, based on the evidence adduced by the extensive and lengthy investigations, the Claimant was arrested and charged with the relevant offences.
He denies that there was any abuse of process as alleged by the Claimant and states that all the charges brought against the Claimant were proper in law.
Kathleen Francis-Noel, the Clerk of the First Defendant, in an affidavit filed on 26 th October 2011 states that she was advised by the First Defendant that she reviewed the affidavit of Sergeant Sheldon Thomas and that she relies on the contents thereof. Further, she indicates that having formed an opinion that a sufficient case have been made out in relation to each and every charge, the First Defendant committed the Claimant to stand trial on the charges after due consideration of the evidence presented in the Preliminary Inquiry which is contained in the depositions.
Finally, Crown Counsel Kinna Marrast-Victor filed an affidavit on 26 th October 2011 on behalf of the Third Defendant in which she indicates that she was advised by the Third Defendant that the decision of the First Defendant which is the subject matter of this claim cannot be attributed to him. On his behalf she therefore sought an order removing the Third defendant as a party to these proceedings. A formal application seeking the same relief was filed on the 28 th October 2011.
The Claimant asks the Court to find that it was an abuse of process of the court to have brought the charges that were laid against the Claimant and that it was a further abuse of...
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