Cassell v The Queen; Cassell & Lewis Inc. v The Queen

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Baptiste, J.A.
• Judgment Date: 30 January 2012
• Neutral Citation: MS 2013 CA 1
• Docket Number: HCRAP 1 of 2012
• Date: 30 January 2012

Cassell

and

The Queen

Cassell & Lewis Inc

and

The Queen

Baptiste, J.A.; Blenman, J.A.; Mitchell, J.A.(Ag.)

HCRAP 1 of 2012

Court of Appeal

Criminal Law - Conspiracy to defraud — Money laundering — Appeal against conviction — Validity of indictment — Directions to the jury.

Appearances:

Mr. David S. Brandt for the appellants

Ms. Anesta Weekes, QC, Oris Sullivan with her, for the respondent

Baptiste, J.A.

1 This is the judgment of the Court. Warren Cassell and Cassell and Lewis Inc. (represented by Warren Cassell) were convicted by a jury in the Territory of Montserrat on several counts of conspiracy to defraud, procuring the execution of valuable securities by deception, and money laundering. Warren Cassel was sentenced to two years on nine counts of procuring the execution of a valuable security, and five years on one count of money laundering. On the two counts of conspiracy to defraud, the firm of Cassell & Lewis Inc. was fined $125,000.00 to be paid in 2 years of 2 years imprisonment. This is an appeal against both the convictions and sentences.

2 Several grounds of appeal were advanced by the appellants, some of which were abandoned during the hearing. It became apparent that the critical appeal grounds related to (1) the alleged nullity of the indictment, (2) the issue of an omission by the learned trial judge to direct on the mens rea needed for a conviction on the conspiracy counts, and (3) being charged under the wrong Act on the money laundering counts.

3 With respect to the grounds dealing with the nullity of the indictment, Mr. Brandt submitted that the proceedings were a nullity by virtue of the court permitting the Crown to file a second or new indictment substituting in the place of the indictment of 24 ^th January 2012, without having applied for leave to amend, and that this was done after the prosecution had closed its case. As a consequence, he submitted, the indictment on which the accused were indicted was a nullity. Additionally, the amended indictment had not been endorsed as required by section 118(1) of the Criminal Procedure Code [Act No. 21 of 1982, Revised Laws of Montserrat, 1999] (“the Code”) of Montserrat. Having considered the transcript and what transpired at the trial, and the submissions of learned counsel for both the appellants and the respondent, we are not of the view that the indictment on which the accused were tried was a nullity as we are satisfied that leave was properly applied for an amendment to the indictment, leave was properly granted, and the amended indictment was file in accordance with the leave given and in accordance with the Code, and no unfairness had been shown to the defendants. Accordingly, we find no merit in this ground of appeal and it is dismissed.

4 Concerning the grounds dealing with the intent for conspiracy, this ground alleged that the learned trial judge omitted to direct the jury on the...