R v Ramon Andrews

• Jurisdiction: Turks and Caicos Islands
• Judge: Aziz J
• Judgment Date: 14 October 2022
• Docket Number: CRIMINAL CASE NO. CR 57 / 2019
• Court: Supreme Court (Turks and Caicos)

Between:

R

and

Ramon Andrews

CRIMINAL CASE NO. CR 57 / 2019

IN THE SUPREME COURT OF TURKS AND CAICOS ISLANDS

Appearances:

Mr. William Belliard for the Crown

Mr. Oliver Smith KC for the Defendant

Introduction

Aziz J

1 This court indicated that it would give its ruling on this matter after hearing and receiving all submissions, including any submissions in reply, which it had the benefit of. There were written submissions in reply which the court allowed after the final in person hearing.

2 The Defendant, Ramon Andrews applies to the Court pursuant to ss.20 and 21 of the Criminal Procedure Ordinance 2018 for the amended information to be quashed; that no leave be granted for the amended information to be further amended and for any further orders deemed fit to be made.

The Charges

3 The defendant is charged with the following offences:

• i. Count 1 — Corruption contrary to section 67 (d) of the Integrity Commission Ordinance 1.09.

  “That you between the 13 ^th day of June 2017 and 19 ^th day of June 2017 in the performance of your duties as a public official namely the Director / Accounting Officer of the Turks and Caicos Islands Tourist Board (TCITB), knowingly or recklessly allowed your private interest as the owner of Caicos Wheels Limited and Economy, to improperly influence your conduct, being your decision to choose said company to provide hire car services of TCITB.”

• ii. Count 2 — Corruption contrary to section 67 (d) of the Integrity Commission Ordinance 1.09

  “That you between the 9 ^th day of January 2017 and 11 ^th day of January 2017 in the performance of your duties as a public official namely the Director of the Turks and Caicos Islands Tourist Board (TCITB), knowingly or recklessly allowed the fact that Caicos Wheels Limited and Economy, is your company / private interest to improperly influence your conduct, being your decision to choose said company to provide hire car services of TCITB.”

• iii. Count 3 — Corruption contrary to section 67 (d) of the Integrity Commission Ordinance 1.09

  “That you on the 17th May 2017 in the performance of your duties as a public official namely the Director of the Turks and Caicos Islands Tourist Board (TCITB), knowingly or recklessly allowed the fact that Island Tours and Excursions is your company / private interest to improperly influence your conduct, being your decision to choose said company without Procurement Regulations to provide tour services to TCITB on a staff retreat held in North and Middle Caicos.”

• iv. Count 4 – Financial Misconduct contrary to section 45 (1)(d)(ii) of the Public Finance Management Ordinance 19.18

  “That you on the 17 ^th May 2017 in the performance of your duties as a public official namely the Director of the Turks and Caicos Islands Tourist Board (TCITB), a public official willingly breached or failed to comply with any regulations in the Public Procurement Ordinance (sections 31,32,33 & 62) by Island Tours and Excursions is your company and provide Tour Services to the TCITB on a staff retreat held in North and Middle Caicos.”

• v. Count 5 — Financial Misconduct contrary to section 45 (1)(d)(ii) of the Public Finance Management Ordinance 19.18

  “That you on the 17 ^th May 2017 in the performance of your duties as a public official namely the Director of the Turks and Caicos Islands Tourist Board (TCITB), a public official willingly breached or failed to comply with any regulations in the Public Procurement Ordinance (sections 31,32,33 & 62) by causing Ketter Development Limited (Greg Ketter) to provide training services to the TCITB on a staff retreat held in North and Middle Caicos.”

4 The initial information was dated the 19 ^th November 2019, to which Mr. Andrews pleaded not guilty to the four out of six counts on the 22 ^nd November 2019. The two counts (5 & 6) were to be reviewed by the Crown and a further arraignment listed for the 27 ^th November 2019. On the 27 ^th November 2019 a further information was signed on behalf of the Director of Public Prosecutions. Mr. Andrews was arraigned and pleaded not guilty to all of the offences, above at para [2] on the 27 ^th November 2019. Thereafter warned and fixed trial dates were set for April and May 2020.

The Application

5 Mr. Smith KC in his submissions raises a preliminary objection seeking to have the amended information quashed and, in the alternative, that there be no further amendments ordered. The basis for the application is grounded on the following:

• i. That the investigative officer has no power to prefer charges.

• ii. In the alternative, if there is a power granted to the investigative officer to charge, then the defendant has been improperly charged under the Public Finance Management Ordinance.

Submissions on behalf of the Defendant

6 Mr. Smith KC in his submissions referred the Court to s.20 of the Magistrate's Court Ordinance (MCO) which deals with the commencement of criminal proceedings and how a complaint finds its way before the court. Mr. Smith KC argues that the relevance to this particular application is that the court must have consideration of the manner as to how proceedings are commenced. This he says is by way of charge, or police officer or other public officer acting in the course of his duty, and by preparing and signing the formal charge.

Commencement of criminal proceedings

• 20. (1) Criminal proceedings may be instituted either by the making of a complaint or by the bringing before the Magistrate of a person who has been arrested without a warrant.

• (2) Any person, who believes from a reasonable and probable cause that an offence has been committed by any person or that any person is likely to commit a breach of the peace, may make a complaint thereof to the Magistrate:

  Provided that where no time is specially limited for making a complaint for any summary offence, in the law relating to such offence, the complaint may only be made within six calendar months from the time when the cause of complaint arose; or if it arose on the high seas, then within six months after the arrival of the vessel at her port of discharge in the Islands.

• (3) A complaint may be made orally or in writing but if made orally shall be reduced to writing by the Magistrate and in any case shall be signed by him and by the complainant:

  Provided that where proceedings are instituted by a police officer or other public officer acting in the course of his duty, a formal charge duly signed by such officer may be presented to the Magistrate and shall be deemed to be sufficient to fulfil the requirements of this section when signed by the Magistrate.

• (4) The Magistrate upon receiving any such complaint, unless the complaint has been laid in the form of a formal charge in accordance with the preceding subsection, shall draw up or cause to be drawn up and shall sign a formal charge containing a statement of the offence with which the accused is charged.

• (5) When an accused person who has been arrested without a warrant is brought before the Magistrate, a formal charge containing a statement of the offence with which the accused is charged shall be signed and presented by the police officer preferring the charge.

7 The crux of the submissions by Mr. Smith KC on this point is that the investigative officer (IO) Brent Gager was not acting in the course of his duty and was not a public officer. Mr. Smith KC states that the members of the Integrity Commission (IC) are not public officers as they are employed by the Integrity Commission using their own resources and funds. The submission is founded on the basis that the IO does not hold an office of emolument in the public service and therefore cannot be deemed to be a public officer and additionally the IC officers cannot be appointed or disciplined pursuant to the provisions of the Constitution.

8 Therefore, he argues that the criminal charges that were laid in the Magistrate's Court were not properly initiated, and the subsequent Information and amended Information does not correct or make clean, wholesome and legitimate, what is said to be action ultra vires and ought to be set aside as null and void.

9 Mr. Smith KC forcefully argues that in this case there has been a fundamental failure to comply with the requirements of the Integrity Commission Ordinance (ICO), referring to the case of Re Pritchard [1963] 1 Ch 502 where there was an originating summons being considered and it was said that there was a fundamental failure to comply with the requirements of the statute relating to the issue of the proceedings; it was not a mere irregularity but much more and therefore in that case it was said to be a nullity and not possible for the defendants to waive that defect.

10 Furthermore, Mr. Smith KC argues that the time for laying an information to initiate criminal proceedings is now expired.

11 Mr. Smith KC, also submits that the Court ought to have consideration of the ICO and its purpose and intent. The sections referred to are sections 13, 18 and 28. This he argues when read in conjunction with the MCO will illustrate how the sections work closely to provide for a proper procedure and various functions of the IC and IO's. According to Mr. Smith KC, the ICO authorizes the IO's to conduct investigations only and it is only in specific circumstances that the IO can arrest a person.

12 Further, it is argued that the Integrity Commission Ordinance (ICO), which sets out the roles and function of the commission and its officers does not explicitly or impliedly give an IO a power to charge or initiate a prosecution against a person. It is said that s.13 of the ICO is silent on the mandate to commence criminal prosecutions, as the ICO only allows for investigative and advisory functions, as an investigative officer is not a police officer and has limited powers of arrest, after which the investigative officer shall...