Barbara Gayle, Staff ReporterThe case of Kingston businessman Bentley Rose who sued the Workers Bank (now Union Bank) in 1996 to recover $140 million plus interest is still dragging on in the courts and has taken dramatic twists and turns several times.
The latest twist to the case is a constitutional motion bought by Melanie Tapper, former general manager of Trafalgar Commercial Bank and Winston McKenzie, former manager of the Workers Bank who are jointly charged with defrauding Mr. Rose and his companies of $7 million. Mr. McKenzie's wife, Elaine, is also charged with them. The civil suit against the bank is still pending in the Supreme Court although the Court of Appeal has ordered a speedy trial. Mr. McKenzie was Mr. Rose's former business partner.
Ms. Tapper and Mr. McKen-zie are contending that attorney Gayle Nelson who is prosecuting the case based on a fiat from the Director of Public Prosecutions should be stopped from conducting the prosecution because he failed to disclose to the DPP and in a full and timely fashion to the defence that he had invested $1 million in one of Mr. Rose's companies. They are seeking to have their trial which started in the St. Andrew Criminal Court last year, struck out or dismissed and that the applicants be unconditionally discharged. In the alternative, they are seeking a new trial with a different prosecutor. The applicants claimed that Mr. Nelson had admitted having an investment of over $1 million in the complainant company Benros Ltd. receiving therefrom monthly interest annualised at 100 per cent per annum.
The defendants named in the constitutional motion which is set for hearing on January 15 are the Director of Public Prosecutions, Gayle Nelson and the Attorney-General.
Mr. Nelson, on the other hand, has brought a summons seeking to have the motion struck out and dismissed. He has filed an affidavit in response to the motion, making several startling allegations which includes the offer of $2 million from a lawyer in November 1999 to have the case dropped in respect of one of the accused. Mr. Nelson is contending that the motion is frivolous, vexatious and an abuse of the process of the court. The summons was filed by attorney Abe Dabdoub, one of the lawyers representing Mr. Nelson in the constitutional motion. The summons is set for hearing tomorrow in the Supreme Court.
Mr. Nelson has filed a voluminous affidavit in response to the motion in which he is saying that the investment on behalf of a client was concluded long before the alleged fraud was discovered. He said it was not true to say he (the prosecutor) had little over $1 million in one of Mr. Rose's companies, Benros Ltd. from 1993 to 1995.
"Any investment I placed in Benros Ltd. was on behalf of a client and not on behalf of myself personally," Mr. Nelson said. He said he knew of no law or codes of ethics that called for the disclosure of the affairs of a client who had absolutely no connection with the subject matter of fraud against the applicants.
Mr. Nelson said that when the defence lawyers raised the matter with him, it was made absolutely clear to them that he had no personal interest in the investment to which they referred. He said the fraud was discovered at the end of May 1995 after the investment together with interest had been fully repaid and the monies paid over to his client.
"The money does not form the subject matter of the charges against the applicants. I have no personal pecuniary interest in the company," Mr. Nelson said in his affidavit.
He said he could not find any legal, moral or ethical basis to say it is relevant to make the disclosure. "I have never in my 22 years at the Bar prosecuting as prosecutor or defence attorney ever seen or heard of a prosecutor being objected to in respect of the prosecution of an officer of a particular entity for fraud even where in many instances where I have been privy to or known of the prosecutor having been a depositor with the same entity let alone where his status as depositor had ended before the fraud had been discovered. I view the action herein as being frivolous and vexatious and an abuse of process of the court." He said if the court found otherwise, that would allow the defence to use spurious, preposterous and outlandish allegations in seeking to defeat the ends of justice thereby creating a dangerous precedent which could result in undermining the rule of law.
The applicant Ms. Tapper who is being represented by Ian Ramsay, Q.C. and attorney Carolyn Reid and the applicant Mr. McKenzie who is being represented by attorneys Walter Scott and Sharon Usim, will be relying on the concept of a fair trial which is that it must not be tainted by a prosecutor who has a personal pecuniary interest in the case.
The applicants are seeking several declarations from the court which are that " they have the right to a fair hearing by an independent and impartial court mandated at section 20(1) of the Constitution which includes the right to a fair and impartial prosecution.
The right to a fair hearing under the Constitution is infringed where the prosecutor has a personal pecuniary interest in the subject matter of prosecution. An attorney who seeks a private prosecutor to obtain a fiat to prosecute from the Director of Public Prosecutions has a duty to make full disclosure to the said Director of Public Prosecutions of all matters within his knowledge pertinent to the exercise of the DPP's discretion.
It is an abuse of the process of the court where an attorney prosecutes on the basis of a fiat which has been obtained without making full disclosure of his interest to the DPP and to the person charged with a criminal offence. The refusal by the prosecuting attorney to make full disclosure of his personal pecuniary interest in the subject matter of prosecution deprives the person charged with a criminal offence of both the appearance of justice as well as the substance of a fair trial, and is a breach of section 20(1) of the Constitution.
The inordinate delay in commencing a trial due to the prosecution's inability to proceed and the incremental addition of new material after trial has commenced thus causing further inexcusable delay constitutes a violation of the right to a fair hearing within a reasonable time as guaranteed by the Constitution.
The criminal case started in the St. Andrew Criminal Court late last year before Resident Magistrate Jennifer Strawe. After hearing evidence for 11 days from the complainant Mr. Bentley Rose, it was adjourned to await the outcome of the constitutional motion.
