Warren Cassell Appellant v The Queen Respondent [ECSC]

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Baptiste JA:,Baptiste JA
• Judgment Date: 30 January 2013
• Judgment citation (vLex): [2013] ECSC J0130-1
• Docket Number: HCRAP 2012/001
• Date: 30 January 2013

Between:

Warren Cassell

Appellant

and

The Queen

Respondent

Between:

Cassell & Lewis Inc.

Appellant

and

The Queen

Respondent

[2013] ECSC J0130-1

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mde. Louise E. Blenman Justice of Appeal

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCRAP 2012/001

HCRAP 2012/002

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Criminal appeal —Conspiracy to defraud —Money Laundering—Whether or not indictment on which the accused were tried was a nullity —Whether or not a jury properly directed in relation to mens rea would inevitably have arrived at the same verdict —Whether or not an accused charged under an incorrect Act is deprived of an opportunity to mount a defenceavailable to him under the correct Act —Proceeds of Crime Act, 1999 —Proceeds of Crime Act, 2010

ORAL JUDGMENT

1 Baptiste JA: 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 Cassell 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 or 2 years imprisonment. This is an appeal against both the convictions and sentences.

Baptiste JA

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 themens 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 Code1 ("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 filed in accordance with the leave given and in accordance with the Code, and no unfairness has 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 requisitemens rea for the offence as...