The way is now clear for Director of Public Prosecutions, Christopher Nelson to proceed with criminal charges brought against a top local attorney-at-law in connection with the failed Capital Bank International of convicted businessman, Finton De Bourg.
Barrister-at-law, Reynold Benjamin had appealed the decision taken by Chief Magistrate, Tamara Gill to send the case of fraudulent breach of trust filed against him to the high court for trial before a judge and jury.
Benjamin secured the services of Queen’s Counsel, Dr. Francs Alexis to fight the case involving the Chief Justice, Attorney General and DPP.
The State was represented in the matter by Solicitor-General, Dwight Horsford, Senior Crown Counsel, Howard Pinnock and female attorney-at-law, Maurissa Johnson who is attached to the SG’s Chambers.
The case was heard on July 19, 2016 by high court judge, Dexter Theodore who handed down his ruling only last week.
THE NEW TODAY reproduces an edited version of the ruling of the high court judge:
The claimant (Reynold Benjamin) is an attorney-at-law. At a preliminary inquiry conducted before the first defendant (Chief Magistrate) the claimant was committed to stand trial in the High Court in its criminal jurisdiction on two criminal charges of fraudulent breach of trust by dishonestly appropriating certain sums of money belonging to his client, Capital Bank International Limited (CapBank).
The complaint to the police against the claimant was made by a receiver whose. appointment was subsequently declared invalid by the High Court.
The applicant was granted leave to seek the following reliefs:
1) An order of certiorari to remove into the High Court and quash as ultra vires the decision of the first defendant (The Chief Magistrate) committing the claimant to stand trial in the High Court in its Criminal Jurisdiction when neither Cap Bank, nor anyone lawfully authorised to act for Cap Bank had made the complaint to the police on the basis of which the charges were laid;
(2) An order of certiorari to remove into the High Court and quash as ultra vires the decision of the first defendant (The Chief Magistrate) committing the claimant to stand trial in the High Court in its Criminal Jurisdiction when no sufficient case had been made out against the claimant, thereby rendering the decision one vitiated by illegality, irrationality, unreasonableness and unfairness;
(3) An order of prohibition prohibiting the second defendant (The Director of Public Prosecutions) from preferring charges of fraudulent breach of trust against the claimant consequent upon the decision of the first defendant.
The issues to be determined are: –
(1) whether the fact that the criminal proceedings against the claimant were based on a report made by an invalidly appointed receiver meant that there was no complaint in law by or on behalf of Cap Bank, and
(2) whether the evidence before the first defendant was sufficient for the first defendant to have committed the claimant to stand trial.
The claimant was in private practice and he was retained by Cap Bank.
He provided Cap Bank with various professional services, including the preparation of mortgages and he also assisted Cap Bank in its quest to gain access to the clearing house facility operated by the Eastern Caribbean Central Bank (ECCB).
In furtherance of that objective Claim No. GDAHCV2001/0490 was filed by the claimant’s law firm, R.C. Benjamin & Co, on behalf of Cap Bank against ECCB and the claimant assisted Cap Bank to apply to ECCB by letter dated 26th November 2002 for admission into the clearing house facility.
The application to ECCB was accompanied by a cheque in the sum of $500,000.00.
By letter dated 16th December 2002 ECCB rejected the application and returned the cheque. Cap Bank asked the claimant to deposit the $500,000.00 into his account at the Grenada Co-operative Bank Ltd as it intended to pursue its efforts to gain admission into the clearing house, at which time the funds would have been required.
Up until February 2008 the claimant was also accountable for certain other funds entrusted to the claimant by Cap Bank.
By letter dated 23rd August 2005 Cap Bank demanded the return of the $500,000.00 entrusted to the claimant for deposit with ECCB, together with other sums.
In that letter Cap Bank indicated to the claimant that the funds belonged to its customers and offered the claimant the option of repaying the sums due in full with interest or to convert the sums due into a secured loan.
Between late 2006 and early 2007 various officers of Cap Bank verbally requested that the claimant return the funds belonging to Cap Bank that it had lodged with the claimant.
By letter dated 23rd August 2007 Cap Bank again wrote to the claimant demanding the full repayment within 14 days of $1,262,611.01 comprising a principal amount of $865,700.97 and interest of $395,910.64.
A receiver was purportedly appointed for Cap Bank in February 2008.
When the receiver was appointed Cap Bank owed the claimant certain sums of money for professional services rendered. By Claim No. GDAHCV2008/0109 filed on 25″ February 2008 Cap Bank challenged the validity of the receiver’s appointment.
By letter dated 6″ May 2008 the receiver’s attorneys, George & Ventour, wrote to the claimant requesting payment of $1,333,637.24 within 5 days.
On 7′” May 2008 the court ruled that the appointment of the receiver was invalid and on the same day an appeal was lodged. A stay of execution of the judgment was granted on the following day.
The claimant replied to George & Ventour by letter dated 27″ May 2008 in which he alluded to the undetermined challenge to the validity of the receiver’s appointment and undertook to deal with the matter after the receiver’s status had been determined.
In his letter the claimant also stated that in the interim he would locate and examine files with a view to reconciling accounts outstanding between Cap Bank and his firm.
The following day the claimant was arrested and charged with committing fraudulent breach of trust by dishonestly appropriating the sums of $500,000.00 and $345,000.00, which had been entrusted to him by Cap Bank.
On 18th September 2008 the appeal against the order declaring invalid the receiver’s appointment was discontinued.
At the conclusion of the preliminary inquiry the claimant made a no-case submission, which was rejected by the first defendant and on 4th November 2011, the claimant was committed for trial.
The claimant contends that the existence of a complaint by Cap Bank is condition precedent to criminal proceedings being validly instituted.
The claimant argues that since the receiver who made the complaint against him was invalidly appointed as a receiver, Cap Bank did not, in law, make any complaint. Therefore, he submits that the condition precedent not having been satisfied, the instituting of proceedings is void.
Learned Queen’s Counsel’s submission is predicated on the proposition that a report by a virtual complainant is a condition precedent to the valid institution of criminal proceedings for breach of trust in relation to a company.
Authority is provided for the submission (in another case) that when a condition precedent to instituting disciplinary proceedings is not satisfied, the institution of such proceedings is null, it does not assist learned Queen’s Counsel with the first hurdle of proving that a report by a virtual complainant is indeed a condition precedent to the” institution of criminal proceedings for breach of trust in relation to a company.
For that submission learned Queen’s Counsel has provided the Court with no authority.
In reply, the learned Solicitor General has submitted that:
(1) There is no requirement in law that a complainant must be related to, or authorised by, the victim of a crime;
(2) The police are entitled to prefer charges even on the basis of anonymous calls.
(3) That it makes no difference that the victim in this case is a limited liability company.
Learned Queen’s Counsel continued, “In this present case, by contrast, the only complaint was by a person whose appointment as receiver this honourable court invalidated”.
However, what the learned judge in fact said was:
(1) There was no authority produced to the court in support of the submission that there must be evidence of a complaint by an authorized person for the initiation of valid criminal proceedings;
(2) There was no authority produced to the court in support of the submission that when the victim is a company the criminal process must be moved by either its secretary or a director;
(3) There was no authority produced to the court in support of the submission that the failure of a director or secretary to make the formal complaint or to lay the information is fatal to the prosecution of the charge.
(4) The court was not of the view that it was critical for a director or secretary of a company that is allegedly wronged to initiate the criminal process.
(5) In any event the court found as a fact that the virtual complainants were clearly identified.
It is trite law that a crime is an offence against the State and not against the victim, per se.
I believe that there is merit in the learned Solicitor General’s submission that the issue of the validity of the appointment of the receiver is not relevant to the issue of whether the police can lawfully exercise their powers to investigate crime or effect arrests or lay charges pursuant to common law and the Police Act Cap 244 of the Revised Laws of Grenada 1990,
Accordingly I can find no merit in learned Queen’s Counsel’s submission that a report by Cap Bank was a condition precedent to the institution of criminal proceedings against the claimant.
Learned Queen’s Counsel produced no authority for his submission that the absence of a formal complaint by an officer or other authorized representative of Cap Bank was fatal to the prosecution of the charge and my own researches revealed none. Logic seems to indicate otherwise.
If learned Queen’s Counsel is correct it would mean that the police could not lay charges after receiving an anonymous tip, and finding credible evidence, that those in control of a company had defrauded that company, until some authorised officer made a formal complaint.
Given the complicity of those holding the reigns of power in that hypothetical scenario such a complaint may never come and the interest of justice would be defeated, as the crime would go unpunished.
The court also held that the courts would intervene when there was a material procedural irregularity, as a result of which the appellant had suffered real prejudice,
I refuse the relief sought and dismiss the claim with no order as to costs.