by RAWLSTON POMPEY
In today’s world, if life were lived in utopia, then few people may have experienced ‘…Trials and Tribulations; …Hell and Horror.’ Except the grave, there is no such place on earth where there is no turmoil, sorrow, frustration and misery. Likened to places of social and racial unrest, there are people fighting for ‘Criminal Justice’ in a system that appears more adversarial to the human psyche, whether they are ‘innocent; …not so innocent; or …guilty; or not guilty.’ When the innocent is unsuspectingly lured through the deceptive exploits of the criminally-inclined, that has often been a time the victim usually asked, ‘Why Me Lord?’ This has been the experience of a ‘forty-five year-old struggling single mother of three.’ Jointly charged and indicted with a ‘female co-worker,’ as fate sometimes has it, her co-accused in an alleged fraudulent scam, ‘fortuitously and unconditionally’ had her indictments ‘Nolle Prosequi.’
AN UNDERSTANDING
The exercise of such power takes into consideration the ‘public interest.’ This so, whether or not the criminal proceedings were instituted, undertaken by himself or by any other person or authority’ [CO: 1981: Section 88 (1) (c)]. Constitutionally insulated, the ‘DPP’ shall not subject himself to the ‘…directions or control of any other person or authority.’ For ‘An Understanding’ of the legal term ‘Nolle Prosequi,’ it simply means an authority when the ‘DPP’ represents himself before a Court in any criminal proceedings. Conversely, it means his written authority or ‘Fiat’ directing a ‘Crown Prosecuting Attorneys’ to act in a prosecutorial capacity on his behalf. Such Crown attorneys are ‘prosecutorially duty-bound’ to comply with his professional directions. His character remains impeccably grounded.
PERSPECTIVE
The accused had been charge with ‘Conspiring with persons unknown’ in pulling off what may have been seen as a ‘spectacular technologically-aided criminal act.’ However, without the necessary technologies and skills, this may have been farfetched. In a bizarre turn of events, she; (a) ‘…Forego the constitutional presumption of innocence; (b) …Ill-advisedly waived her right to a full and fair hearing; and (c) …Made restoration of proceeds said to have been derived from her technological exploits.’ Desperately seeking to go to trial, she was confronted with endless ‘Trials and Tribulations,’ Hell, Horror and Miseries.’ This commentary not only looks at the turn of events, but also attempts to sensitize and/or bring awareness of potential dangers posed in accepting opportunities for ‘Cash Making’ on social media.
HELL AND HORROR
Since her hasty; (i) ‘…Arrest; (ii) …Committal; (iii) …Indictment; and (iv) …Arraignment,’ the accused had never faced an empanelled Jury. She was not only ‘struggling to sustain life on limited financial resources,’ but had also appealed to ‘Crown Prosecutors’ to cause her trial to be expedited. Inexplicably, prosecutors appeared not to have remembered that ‘He, who accuses, must prove.’ Instead the case for the prosecution had been traversed from ‘Assizes to Assizes,’ with adjournment after adjournment.’ The accused endured as many ‘Trials and Tribulations,’ as she had seen ‘Hell and ‘Horror.’ The enduring wait for trial may have been nothing short of being psychologically painful, cruel and inhuman treatment.’
QUICK CASH – BACKLASH
When ‘Face Book’ messages offered opportunities to potential agents in facilitating the transfer of sums of money to ‘Africa Continent,’ it appeared that those hoping to earn ‘Quick Cash’ got ‘Backlash.’ Some participants may have been too naïve in assuming that such activity had legitimacy. When those entrapped in unsuspected acts of criminality, the time came when they may have asked; ‘Why me Lord?’ In the instant case, the recruitment process reportedly began when the unsuspecting accused was reportedly introduced to the unknown scammers on social media. Then acting upon ‘Watsapp Directions,’ third parties on ‘St. Kitts/Nevis,’ had been influenced to open ‘Savings Accounts’ at a commercial bank in the Federation.
10% COMMISSION
Their accounts were credited with funds said to have been siphoned-off from a banking institution on ‘St. Vincent and the Grenadines.’ The funds were then dispatched through money transfer agencies to the named accused person in ‘Antigua and Barbuda.’ Likened to the other dispatchers in the ‘Federation of St. Kitts/Nevis,’ visiting her ‘Face Book Page,’ the accused reportedly clicked on an inbox message. It offered an online job opportunity to; (i) ‘… Receiving money; (ii) …Making a commission; and (iii) …Transferring Money to a third party.’ An incentivized ‘10% Commission’ was reportedly received by dispatchers, averaging a meager ‘EC$200.00.’
TECHNOLOGICAL FEAT
Both females were accused of hacking into the ‘Savings Account’ of then a ‘Mona Campus’ student. The student, a Vincentian national had been a customer with a commercial bank on ‘Halifax Street, Kingstown, St. Vincent and the Grenadines’ [2015]. Even possessing limited computer skills, had that been factually correct and evidentially proven, it would have been an exceptional ‘21st century ‘Technological Feat’ by two females, complicit in committing a cyber crime, while resident in ‘Antigua and Barbuda.’ It begs the question, ‘…What scammer would have hacked into a bank account to receive the negligible sum of ‘EC$200.00?’ Even a dim-witted ‘monkey’ representing a ‘donkey’ in a ‘Kangaroo Court,’ would have found this kind of logic preposterous.
INEXCUSABLE
It has always been viewed as ‘Inexcusable’ for ‘Crown Prosecutors’ not to be ready to proceed with trials. This is particularly so, after ‘…accused persons have been speedily committed; and indictments have been hastily filed and service have been completed. None shall be deceived into believing that the attendance of; (i) …an adjudicator; (ii) …Crown Prosecutor; (iii) …an accused person; and (iv) …an attorney,’ necessarily means the commencement of trial. Such trial dictates the ‘empanelling of a 12-member Jury.’
PUNISHING WAIT
Resident in ‘Antigua and Barbuda,’ an accused female remains adamant that she was not guilty of ‘fraud-associated charges.’ She vehemently denied that she was complicit in a scam with ‘persons known or unknown’ to defraud a commercial Bank on mainland ‘St. Vincent and the Grenadines’ [2015]. In spite of the constitutional ‘presumption of innocence,’ [Section 15 (2) (a)], she endured a ‘Punishing Wait’ of five years for a trial that had never started. Placed on ‘Suspension From Office,’ and forced to subsist on a ‘1/3 Salary reduction,’ pending the outcome of a criminal trial, when no assistance came from State prosecuting agencies, not only her anxieties and frustration increased, but also the miseries associated with reduced disposable income.
TRIAL FIXTURES
Barring administrative, human resource or equipment difficulties, even as ‘Trial Fixtures’ had been made, there had been no actuality of trial. In the instant case, that which may have been obvious to all a sundry, were; (i) …No Jury was ever empanelled; (ii) …No witnesses came from (a) …St. Vincent and the Grenadines; (b) …St. Kitts/Nevis; (c) …Jamaica; and (d) …Antigua and Barbuda.’ None were ever summoned to appear before a ‘Judge and Jury.’ What was known is that in ‘2015 to early March 2020,’ there was no ‘Coronavirus,’ and no ‘lockdown’ of any darn systems, judicial or otherwise.
PREGNANT WITH DECEPTION
When the indictments against her were conditionally ‘Nolle Prosequi,’ observers saw it as an abortion, with striking resemblance of ‘perversion.’ Some have further argued that the accused may have been deceptively led into believing that she was given an easy way out of a criminal trial that showed a possibility for an acquittal. It shall have been to the knowledge of ‘Crown Prosecutors’ that there was no ‘reasonable prospect of conviction.’ In making the restorative payment,’ it begs the; ‘Why was the accused influenced, coerced, agreed or allowed to make restitution as to be seen as an opportunity to escape ‘Jury Trial?’ Such appeared ‘Pregnant with Deception.’
INDUBITABLE FACTS
That which shall be clearly understood is that ‘His Lordship’ was in no way complicit in that which observers viewed as ‘prosecutorial inconsistency,’ in aborting trial in lieu of the restitution of money to a victim. On her final appearance, the accused was not called upon to enter a plea. These assertions could neither be questioned, nor challenged. Such are made on the basis of ‘Indubitable Facts;’ (i) …There was not an empanelled Jury: (ii) …Non-attendance of witnesses for the prosecution or defence; and (iii) …Non-attendance of the arresting officer to give evidence of his investigative role.’ That was the time when ‘Justice Says No.’
WHEN JUSTICE SAYS NO
As fate sometimes has it, a reluctant and distraught accused, was left with a heavy financial debt’ [May 2020]. When the accused reportedly agreed to restore ‘EC$10, 000’ [May 2020], that may have been coincidental with the time ‘Balaam’s donkey complained of its treatment’ [Numbers 22: 28]. She had been crying and pleading for an expedited trial by a Jury of her peers. Such were made ever since some ‘poultry farmers’ have been trying to ‘produce roosters with teeth’ [2015]. To date, there has been no ‘teeth-bearing roosters,’ and no trial was ever conducted. Likened to the incomplete ‘…Kenneth Roland Wyre and Rowan ‘Archie’ Bailey trial,’ after a delay of five years, justice was effectively denied. Visitation by the Judiciary has still not resolve the situation.
TEN YEARS – TRIAL DELAY
In sworn affidavit by ‘Crown Counsel Shannon Jones-Gittens,’ she intimated that; ‘…Between 2012 and 2015, the High Court was plagued with disruptions.’ These were identified as; (i) …Bomb threats; and (ii) …Sewage problems and water issues’ [Paragraph 19]. As compelling as these may have been, ‘Her Ladyship, Justice Agnes Actie’ appeared not to have been overly amused. She wrote; ‘…The State is obliged to organize its legal system to ensure compliance with the guaranteed right under the Constitution for a fair and speedy trial.’ Consequently, she ordered compensation in the respective sums of ‘EC$7, 500 and EC$ 5, 000’ [Paragraph 54] to the accused/litigants.
NOT GUILTY PLEA
For five years, having waited agonizingly for trial, in the last arraignment at the ‘Criminal Assizes of 2020,’ she remained unwavering. The accused showed consistency with her ‘Plea of Not Guilty.’ Such consistency undoubtedly, may have provoked a rude awakening in ‘Crown Prosecutor Shannon Jones-Gittens.’ She insisted that she had not by herself, or with persons known or unknown, hacked into a bank account, be it in this jurisdiction or outside jurisdiction. Crown Prosecutors may then have become aware that they were facing issues of; (a) ‘…Jurisdiction; (b) …Inadequacy of evidence; and (c) …an inability to produce listed witnesses from; (i) …St. Vincent and the Grenadines; (ii) …St. Kitts and Nevis; and (ii) …Jamaica.’
ORIGINAL/NEW INDICTMENTS
Through the years, it had been adjournment after adjournment. Instructively, in every instance when a ‘Court Fixture’ came up, it ended in futility. Those in attendance were always; (i) ‘…The adjudicator; (ii) …Crown Prosecutor; (iii) …the accused; and (iv) …her attorney.’ On arraignment, the accused pleaded not guilty to the filed ‘Original and New Indictments.’ Not only had her anxieties grew, but also her cries grew louder and louder. When trial was further delayed, ‘Justice’ was effectively denied. The delays seemed to have replicated that of the ‘…Kenneth Roland Wyre and Rowan ‘Archie’ Bailey Case’ [ANU: HCV 2019/306]. This case made grim reminder of the horrors of a criminal trial and the apparent languid state of the ‘Criminal Justice System.’
PROSECUTORIAL MORASS
Even with the availability, yet non-attendance of criminal investigator, then ‘Inspector Grantley Simons,’ ‘Crown Prosecutor Shannon Jones-Gittens’ may still not have been well evidentially positioned to establish a ‘prima facie case’ against the accused. So ‘wishy-washy’ had been the investigation, that no personal interviews were conducted with listed or other potential witnesses outside ‘Antigua and Barbuda.’ Privileged information suggested that the investigator had not travelled to make contact with any of the listed witnesses. Crown Prosecutors had to figure a way out of the ‘Prosecutorial Morass.’ It may have been viewed as ‘sheer lunacy’ to conduct investigation into a crime allegedly committed at a bank in ‘St. Vincent and the Grenadines.’
FREQUENT WITHDRAWALS
A particular feature of the scam operations had been the frequency of withdrawals. From a single Account- ‘eleven (11)’ transactions were reportedly executed over a ‘seventy-two hour period.’ Such frequency made the scam operations capable of being described as intriguing, yet vexatious. When it was all over, a Commercial bank on ‘St. Vincent and the Grenadines’ had been deprived of ‘XCD$28, 000.’ Bank officials in ‘St. Kitts/Nevis’, who had discovered the questionable activities, were left startled; …Bank officials in ‘St. Vincent and the Grenadines,’ befuddled. Yet they reportedly made no report to law enforcement authority in that jurisdiction. Instructively, some ‘EC$ 18, 000’ still begs for accountability and/or restitution. Neither had there been any prosecutorial action taken against other dispatchers in St. Kitts/Nevis.
MONEY TRANSFER SCAM
When the money transfer job became the subject of bank scrutiny in the ‘St. Kitts/Nevis Federation’ it saw the immediate closures of accounts. Though the females had no involvement with any banking entity, it was revealed that they had participated in a ‘Money Transfer Scam.’ Their involvement as recipients of funds to be dispatch to ‘Africa,’ resulted in their arrest. This came about, following the detection of ‘five suspicious transactions,’ by staff of a commercial bank on ‘St. Kitts/Nevis.’ It was obvious that ‘His Lordship, Justice Iain Morley’ was not positioned to perform his judicial role of trial Judge.
DOCUMENTARY EVIDENCE
The money suspectedly siphoned off from the ‘Kingstown Halifax Street’ commercial bank’ [SVG] was reportedly electronically dispatched to a corresponding bank on the Federation of ‘St. Kitts/Nevis.’ Then through two regional ‘Money Transfer Agencies’ participants in that jurisdiction dispatched it to the accused through corresponding agencies. Incidentally, after two dispatches, the suspicious transactions were reportedly detected and arrested by bank officials in that jurisdiction. There was ‘Documentary evidence’ confirming that the proceeds dispatched from ‘St. Kitts/Nevis were transferred to a named person on continental Africa by the accused.
FIGMENT OF IMAGINATION
The accused and another female were accused of hacking into the ‘Savings Account’ of then ‘Mona Campus’ student [Jamaica]. The student, a Vincentian national had been a customer with a commercial bank on ‘Halifax Street, Kingstown, St. Vincent and the Grenadines’ [2015]. Even possessing limited computer skills, had that been factually correct and evidentially proven, it would have been an exceptional ‘21st century technological feat’ by two females, complicit in committing a ‘Cyber Crime,’ while resident in ‘Antigua and Barbuda.’ Removed from investigative competence, this appeared more a ‘Figment of Imagination’ than it was in reality. Seemingly playing ‘hide and seek,’ Crown Prosecutors appeared to have been sunken into obscurity.
NEW INDICTMENTS
It was obvious that ‘Crown Prosecutors’ may have been caught off-guard to realize that the affected financial institution was in actuality in another jurisdiction – ‘St. Vincent and the Grenadines.’ Encountering ‘an evidential cul-de-sac,’ Crown Prosecutors revisited the ‘Larceny Act’ [ANU: Chapter 241]. This may have been evident when ‘Crown Prosecutor Shannon Jones-Gittens’ came back to the ‘Criminal Assizes’ swinging. There were two ‘New Indictments.’ This was ‘prosecutorial gymnastics’ at best. Calmly, she apprised the ever accommodating adjudicator, His Lordship, Justice Iain Morley, that two ‘New Indictments’ had been filed against the accused; (i) ‘…Receiving Stolen Property; and (ii) …Conspiracy’ [March 2020]. These were consistent with existing law.
EVIDENTIAL ELEMENTS
That for which the accused was further indicted, clearly states; ‘…Every person who, ‘without lawful excuse,’ receives or has in his possession any property ‘Stolen’ or obtained out of ‘Antigua and Barbuda,’ ‘Knowing’ it to have been stolen or obtained in any way whatsoever under such circumstances as if the act was committed in Antigua and Barbuda, the person committing it would have been guilty of a felony or misdemeanour.’ The penalty on conviction is a term of ‘imprisonment not exceeding 7 years’ [Section 37 (3): Chapter 241].
PROSECUTORIAL STRENGTH
The accused was not only adamant of her innocence, but also cognizance of the fact that ‘Crown Prosecutors’ had no ‘Prosecutorial Strength’ pursuing a criminal trial without ‘…reasonable prospect of conviction.’ Crown Prosecutors themselves may have come to the realization of three possibilities; (i) …The accused insistence to stand before the Jury; (ii) …Provable evidence that she possessed the technological skills to hack into a Savings Account in St. Vincent and the Grenadines; or that (iii) …She had the sophisticated capacity to siphon-off and wire money to accounts at a corresponding bank on ‘St. Kitts/Nevis.’ More importantly, they had no supporting evidence that the accused was the mastermind behind the fraudulent activities detected by bank officials in that jurisdiction.
SHODDY INVESTIGATIONS
It may also have been for reasons of ‘Shoddy Criminal Investigations’ that some prosecutions were delayed. From that which was gleaned through privilege information, the arrest not only appeared to have defied logic, but also professionally misguided. Clearly, overzealous criminal investigators, without an iota of evidence necessary to constitute and prove the case, slapped the accused with; (i) …Larceny of Money; (ii) …Receiving Stolen Property; and (iii) …Conspiring with a known female’ to ‘defraud a commercial Bank in St. Vincent and the Grenadines’ [2015]. It may have been prosecutorial oversight, that the original ‘Complaints without Oath’ filed, showed that the offences were committed in ‘…Magisterial District A, St. John’s, Antigua and Barbuda.’ Crown Prosecutors, therefore, may have encountered grave difficulties in finding a nexus, linking the accused to the criminal acts, be it within or outside this jurisdiction. Crown Prosecutors know that they were duty-bound to prove ‘beyond reasonable doubt.’
LEGITIMACY OF FUNDS
There may have been good reasons ‘Crown Prosecutor Shannon Jones-Gittens’ that the accused was kept away from a ‘12-member Jury.’ One possible reason may have been keeping the legitimate holders of personal bank accounts in ‘St. Kitts/Nevis’ on the Witness stand. They would have been required to give testimony as to; (a) …Origin; (b) …Source; and (c) …Legitimacy of funds’ credited to their ‘St. Kitts/Nevis Accounts.’ It would also have been interesting to hear what questions ‘Defence Attorney’ may have asked respecting; (i) ‘…Legitimacy or illegitimacy of such funds; (ii) …How withdrawn; and (iii) …What, if anything, what they did with the funds.’
FUNDAMENTAL CONSIDERATIONS
Answers given truthfully, would most certainly have favoured the accused. Since she had no dealings with any bank, ‘Crown Prosecutors’ may have found it difficult to convince a Jury that the accused ‘KNEW’ that monies were ‘STOLEN’ from a commercial bank in ‘St. Vincent and the Grenadines’ when she received certain sums through ‘Money Transfer Agencies.’ From prosecutorial experience, in establishing a ‘prima facie case,’ Crown Prosecutors needed ‘prima facie evidence.’ Such evidence must satisfy the requirements of the law. Given these, Crown Prosecutors may have struggled with two ‘Fundamental Considerations; (i) ‘…Placing the accused before the Jury with insufficiency of evidence; and (ii) …Taking the case beyond the threshold of ‘…reasonable prospect of conviction.’
PROSECUTORIAL GYMNASTICS
There had been no substantiating evidence that she had committed fraud against any commercial bank operating within the jurisdictions of; (a) ‘…Antigua and Barbuda; (b) …St. Kitts and Nevis; and (c) …St. Vincent and the Grenadines.’ Had that been the case, the question is, ‘Why was the accused not put on trial? It may have been clearly given to understand, that even if ‘Thy Kingdom Come,’ the accused was not going to walk away scotch-free. After several exhibitions, a ‘Prosecutorial Gymnast’ was born. The ‘Crown Prosecutor Shannon Jones-Gittens’ was ‘cresting’ atop a ‘10-foot prosecutorial wave.’ She was granted yet another trial adjournment.’ This meant more agonizing delay in bringing the accused to trial.
NOLLE PROSEQUI
When ‘Crown Prosecutor Shannon Jones-Gittens’ informed ‘His Lordship, Justice Iain Morley’ that the Director of Public Prosecutions (DPP) was entering a ‘Nolle Prosequi’ to end the new indictments against the accused, the criminal proceedings effectively ended. When the ‘Nolle Prosequi’ was entered, that may have the time the ‘toothless rooster crowed.’ For the avoidance of ‘doubt, misconception or speculations,’ constitutional powers reside only with the ‘Director of Public Prosecutions.’ As such, the office holder is at liberty to ‘…discontinue at any stage, before judgment is delivered in such criminal proceedings’ [Section 88 (5)].
CONCLUSION
None may deny that the proliferated use of technology has seen criminals with various exploitative skills. There have been; (a) ‘…schemers; (b) …scammers; (c) …fraudsters; and (d) …hackers or phishers.’ These criminals are adept at performing ‘unimaginable technological feats.’ They are never far away from their computers or other technological gadgets. They have been constantly ‘phishing’ and stealing data and/or internet user’s identities. Such is achievable only when personal information, including ‘bank credentials’ is revealed, requested or stealthily accessed. Constantly in hacking mode, they have been unrelenting in targeting unsuspecting victims with ‘Messages’ that often prompt detrimental responses. Data ‘phished’ out has often been exploitatively used for financial gain. It has been public knowledge that as depositors endeavor to grow bank balances, ‘Cyber Criminals’ have been assiduously devising ways in entering bank balances. Given these truths, only increased operational and transactional business vigilance, could help to lessen ‘Trials and Tribulations and Hell and Horror,’ including the indignities, agony and uncertainties associated with criminal proceedings.’ ***
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