Warren Cassell First Claimant Cassell & Lewis Second Claimant v The Magistrate First Defendent Attorney General Second Defendant [ECSC]

• Jurisdiction: Montserrat
• Judge: MOE J.
• Judgment Date: 11 March 2010
• Judgment citation (vLex): [2010] ECSC J0311-2
• Court: High Court (Montserrat)
• Docket Number: CLAIM NO.: MNIHCV2009/0030
• Date: 11 March 2010

[2010] ECSC J0311-2

THE EASTERN CARIBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CLAIM NO.: MNIHCV2009/0030

In the Matter of an Originating Motion by Warren Cassell Cassell & Lewis for an Order of Certiorari

In the Matter of an Application for an Administrative Order Pursuant to Rule 56 of the Eastern Caribbean Supreme Court Civil Procedure Rules

Between:

Warren Cassell

First Claimant

Cassell & Lewis

Second Claimant

and

The Magistrate

First Defendent

The Attorney General

Second Defendant

APPEARANCES:

Mr. Leon Chaku Symister for the Claimants

Miss Shona Griffith for the Respondent/Defendants

1 MOE J. These are Judicial Review Proceedings to quash the decision of the Magistrate to commit the Claimants to stand trial in the High Court on eight counts of Conspiracy to defraud,

MOE J.

2 On 24^th February 2010 the Respondent/Defendants filed their skeleton arguments while the Claimants filed their skeleton arguments on 19^th February 2010. As the submissions made at the hearing were virtually similar to these arguments, I have relied almost entirely on these arguments in writing this judgment and I therefore acknowledge the valuable assistance of both parties in this respect.

BACKGROUND

3 There were also affidavits from Mr. Oris Sullivan, Senior Crown Counsel (Criminal) in Attorney General's Chambers filed on 29^th January 2010; from Mrs. Dorsette-Hector, Senior Magistrate in this matter, filed on 29^th January 2010.

4 The first applicant is an Attorney-at-law of the Eastern Caribbean Supreme Court and the sole Director and shareholder of the second applicant, Cassell & Lewis, Inc., a corporation incorporated under the laws of Montserrat with its principal offices in Brades.

5 On 4^th November 2008 the applicants were jointly charged with 8 counts of conspiracy to defraud. The Preliminary Inquiry in this matter began in May 2009 and ended on 18^th June 2009. After hearing submissions from Counsel for the Applicants and from the Prosecution, the learned Senior Magistrate committed the applicants to stand trial at the next assizes.

6 The Inquiry concerned the institution of criminal proceedings for conspiracy to defraud one Owen Rooney, alleging that Warren Cassell and Cassell & Lewis Incorporated conspired together and with Walter Alexander Wood III and other persons unknown to do so.

7 The charges at the Preliminary Inquiry are known as CI43/08, CI44/08, CI45/08, CI46/08, CI47/08, CI48/08, CI49/08 and CI50/08.

8 At the Preliminary Inquiry the Crown led evidence of some 22 witnesses to support the charges of Conspiracy to Defraud. In particular reference is made to the testimony of the following witnesses:-

• (i) Peter J. Rooney (at pages 59–61 of the Depositions) gave evidence of a telephone call made to his home in Fairfax, Virginia, USA by a male person who introduced himself as Warren Cassell calling from Montserrat. The male caller made enquiries as to the whereabouts of Owen Rooney, the brother of Peter Rooney, and left telephone contact information. In response to Peter Rooney's enquiry, the caller indicated that he was interested in purchasing land in Montserrat. Peter Rooney at that time knew his brother Owen Rooney to be alive and informed no one that his brother was dead.

• (ii) Kenneth Cassell (at pages 106–109 of the Depositions) gave evidence that he was a real estate agent and that he had a conversation with Warren Cassell around April/May of 2007 in which Warren Cassell stated that he had been in contact with the owner of the property in Providence Estate —Mr. Wood. Some months later Kenneth Cassell reports that Warren Cassell contacted him by e-mail to say that he was now a director in the company (which he assumed to mean Providence Estate). Arrangements were made between the two for Kenneth Cassell to do advertising on his internet website for the property and to act as real estate agent. Kenneth Cassell reports having arranged the sale of 2 lots of the estate for which he received a commission.

• (iii) Meredith Lynch (at pages 114 to 119 of the Depositions) gave evidence of being a friend of Warren Cassell and described herself of not being an employee of the company Providence Estate, but "assisting" Mr. Cassell with minutes for the company. Ms. Lynch testified of having been appointed by Mr, Cassell as interim secretary of the company; of attending a meeting of members, present at which were herself and Mr. Cassell; of signing a resolution dated 21^st September 2007 at that meeting which removed Owen Martin Rooney and Walter A. Wood III as directors of the company effective that date. The Resolution stated the reason for Owen Rooney being removed as director was him (sic) "refusing to return to Montserrat and not having made any contact with the members of the company for several years". The Resolution also appointed Warren Cassell as director effective from 1^st July : 2007. Under Mr. Cassell's direction Ms. Lynch prepared a Notice of Change of Directors and filed same with the Companies Registry. Ms. Lynch further testified that she signed several transfers of land as Secretary, from Providence Estate to various purchasers and that the Director of the company at that time was Warren Cassell

• (iv) Violette Silcott(at pages 26–31 of the Depositions) is the Comptroller of Inland Revenue for the Government of Montserrat and gave evidence of having been contacted by Warren Cassell sometime prior to July 2007 with an inquiry pertaining to property taxes owed by Providence Estate. Ms. Silcott questioned Mr. Cassell's authority to act on behalf of the owners of Providence Estate as she was aware that one Mr. Wood and Owen Rooney were owners of the company. Ms. Silcott testified that she was shown a document by Mr. Cassell authorizing him to act on behalf of Mr. Wood but did not possess a copy in her files. Subsequent to that enquiry she received a letter from Warren Cassell of Cassell & Lewis dated 2^nd July 2007 concerning proposed payment of arrears of property taxes owed by Providence Estate.

• (v) Amelia Daley (at pages 120–126 of the Depositions) is the Registrar of Companies and the Registrar of the High Court of Montserrat. She produced official records of the incorporation of Providence Estate as well as minutes by which Owen Rooney and Walter Wood became directors and 40% and 60% owners respectively of the shares of the company. Ms. Daley also produced records of application made to the Court by Warren Cassell to restore the company to the Register, it having been struck out in 2001. The application was accompanied by affidavits of Warren Cassell and of Walter Wood. The application also included a share transfer agreement between Warren Cassell and Walter Wood, for the transfer of the latter's of shares in Providence Estate to Warren Cassell.

• (vi) Owen Rooney (at pages 62–105) of the Depositions) gave evidence as to the history of his involvement and part ownership of Providence Estate; his agreements with Walter Wood for ownership of some of the properties owned by the company; an agreement for the development of the properties owned by the company; his involvement, money expended and work undertaken in respect of the properties. Mr. Rooney also gave evidence of certain findings made by a Court in Virginia relating to the validity of the share transfer between Walter Wood and Warren Cassell and a resulting judgment for damages in his favour against Warren Cassell. Mr. Rooney also gave evidence of communications between himself and Warren Cassell through Rooney's attorney, Hogarth Sergeant, which establish that Cassell assumed right of directorship with full knowledge of Mr. Rooney's existence, if not his actual whereabouts. The Resolution filed to remove Rooney as director was also filed after it was established by Rooney's documentation that Cassell was aware of his existence and communicated with him (Rooney) via his attorney. Mr. Rooney's evidence is that he received an e-mail from Walter Wood prior to Wood's affidavit in support of Cassell's application to restore the companywhich established that the basis, upon which the shares were transferred and Wood removed as a director, was false.

GROUNDS FOR RELIEF

9 In his skeleton arguments Warren Cassell states that the Learned Magistrate erred in law when she determined that the Claimants were able to conspire together although the First Claimant is the only shareholder and Director of the Second Claimant Company as it relates to the charges.

10 He went on to point out that the first claimant and the second claimant are one and the same and in these circumstances it is factually and legally impossible for the first and second claimants to "conspire together".

11 There seems to be common ground that Warren Cassell and Cassell & Lewis cannot conspire together as submitted by Ms. Griffith and she referred toR v. McDonnell 50 Cr. App. R.5 [1966] 50 Cr. App. R.5.

12 In Archbold, Criminal Pleading, Evidence and Practice 2008 Edition Sect. I para. 34:29 it is stated "A company may be convicted of an offence of conspiracy:R v. ICR Haulage Co. Ltd [1994] 30 Cr. App. R.3. Where the sole responsible person in a company is the defendant, an indictment for conspiracy between the defendant and the company will not lie, since there are not two persons or minds acting R v. McDonnell(supra) (Nield J.) It may be otherwise if the defendant brings his company into combination with himself in his capacity not as the person solely responsible for his company, but as a person responsible for the acts of another corporation: see the Canadian cases cited in McDonnell, ante."

13 Mr. Cassell goes on to argue that the Learned Magistrate erred in law when she determined that in relation to the complaints the properties were "gifted to Rooney".

14 The first claimant...