The Queen v Harold Lovell
| Jurisdiction | Antigua and Barbuda |
| Judge | ‘Williams J.’ |
| Judgment Date | 23 November 2021 |
| Neutral Citation | AG 2021 HC 030 |
| Docket Number | CLAIM NO: ANUHCR 2020/0117 |
| Court | High Court (Antigua) |
IN THE EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF ANTIGUA AND BARBUDA
CLAIM NO: ANUHCR 2020/0117
Mr. Oris Sullivan and with him Mr. Sean Nelson, Counsel for the Crown
Ms. Anesta Weekes, Q.C and with her Mr. Charlesworth Tabor, Counsel for No: 1 Accused
Mr. Dane Hamilton, Q.C and with him Mr. Chaku Symister, Counsel for No: 2 Accused
Mr. Justin L. Simon, Q.C and with him Mr. Sylvester Carrott, Counsel for No: 3 Accused
At the close of the Prosecution's case, Counsel for the three defendants - Mr. Harold Lovell, Dr. Jacqui Quinn and Mr. Wilmoth Daniel — submitted that their clients have no case to answer in relation to the offenses of embezzlement, conversion and corruption with which the Defendants were charged.
The test to be applied when a Defendant contends that there is no case to answer is found in the judgment of Lord Lane CJ in R v Galbraith [1981] 1 WLR 1039; 73 Cr App R 124 (CA) at 127:
“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty — the judge will stop the case.
“(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence.
“(a) Where the judge concludes that the prosecution's evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.
“(b) Where however the prosecution's evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury…
“There will of course, always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
The Defendants seek to assail the Crown's case on two fronts:
-
i. In relation to the Counts for embezzlement:
-
a. The Counts as they appear on the indictment are improperly drafted and therefore defective;
-
b. The charges of embezzlement are ill-conceived, in that the Defendants cannot be properly charged for such an offence; and
-
-
ii. In relation to the Counts for conversion and corruption:
-
a. There is no evidence that the crime alleged has been committed; and/or
-
b. There is inherent weaknesses, vagueness and inconsistencies so that the prosecution's case taken at its highest, is such that a jury properly directed cannot properly convict on it.
-
On or about the 24 th April, 2008 three Daewoo buses arrived at the port in Saint John's, Antigua and Barbuda. The buses were shipped on the container vessel ‘Ryujin’. The buses were consigned to the “Ministry of Foreign Affairs of Antigua and Barbuda,” for the attention of “Mr. Colin Murdoch, Permanent Secretary”.
The shipper is identified on the cargo manifest as the Korea International Cooperation Agency, KOICA. The packing list identified the buses as ‘Diplomatic Cargo’. The buses were gifts from the Government of the Republic of South Korea.
Permanent Secretary Murdoch requested the assistance of the Transport Board to have the buses cleared from the customs. Mr. Hubert Jarvis, an official of the Transport Board, cleared the buses. The buses were then taken to the Transport Board's Motor Pool.
During the course of 2008, the three buses were, on differing occasions, separately registered and licensed at the Transport Board in the names of the three defendants: Mr. Harold Lovell, Dr. Jacqui Quinn and Mr. Wilmoth Daniel.
In 2008 when the buses arrived in the country, the three Defendants were Parliamentary Representatives and Ministers of Government in Antigua and Barbuda.
The nine charges against the three accused for embezzlement, conversion and corruption, concern three buses.
The Vehicle Identification Number (VIN) for each of the three buses were: KL5UM52HE8U001554, KL5UM52HE8U001555 and KL5UM52HE8U001556
The bus with the VIN ending 01554 was insured at the National General Insurance Company, NAGICO, on 13 th June, 2008 in the name of the third defendant, Mr. Wilmoth Daniel. The bus was issued with license plate number C-9874 by the Transport Board.
The bus with the VIN ending 01556 was examined at the Transport Board on 20 th August, 2008. The bus was insured at the Antigua and Barbuda Insurance in the name of the first defendant, Mr. Harold Lovell. The bus was issued license plate number C- 10211 by the Transport Board.
The bus with the VIN ending 01555 was insured at the General Insurance Company Limited in the name of the second defendant, Dr. Jacqui Quinn. On the 3 rd December, 2008 the bus was issued with license plate number C- 10255 by the Transport Board.
Eight years after the buses first arrived in Antigua and Barbuda, on the 30 th May, 2016 summonses were served on the three Defendants by then Assistant Superintendent of Police Lisborn Michael, charging them with one count each of embezzlement, conversion and corruption.
The Defendants were committed to stand trial on 18 th June, 2020. They were indicted by the Director of Public Prosecutions on the 20 th day of January, 2021.
The three Defendants are charged separately. There is no suggestion of joint enterprise. They are joined in this indictment based on the subject matter of the offences.
Counts One, Two and Three concerned Mr. Lovell only.
Counts Four, Five and Six concerned Dr. Quinn only.
Counts Seven, Eight and Nine concerned Mr. Daniel only.
By virtue of the Criminal Proceedings (Trial By Judge Alone) Act, No. 8 of 2021, the charges on the indictment in this matter are mandated to be tried by a single Judge.
The Criminal Proceedings (Trial By Judge Alone) Act, was signed by the Governor-General on the 28 th May, 2021.
Statutory Instrument 2021, No. 46 the Criminal Proceedings (Trial by Judge Alone) (Notice of Commencement Order), 2021 was published in the Gazette, No. 38, appointing the 7 th day of June, 2021, as the date the new law entered into force.
Act No. 8 of 2021 provides at section 4 (1) that:
“…every person who is committed for trial or indicted, either alone or jointly with others, for any one or more of the offences set out in subsection (2) of this section shall be tried before a judge of the court sitting alone without a jury….”
Subsection (2) lists at (a) “indictable offence under the Larceny Act, Cap. 241” and at (c) “indictable offences under the Prevention of Corruption Act, No. 21 of 2004.”
The three offences with which the Defendants are charged are for offences under the Larceny Act and the Prevention of Corruption Act.
The Criminal Proceedings (Trial By Judge Alone) Act did not alter in any way the considerations to be applied by the Judge, as the forum of law, when there is a ‘no case’ submission. The Judge is only to consider at this stage whether a prima facie case is made out. The fact-finding function of the single Judge arises only at the very end of the case.
Prior to the commencement of any evidence being lead, the Crown sought — and was granted — extensive amendments to all of the counts on the indictment. These amendments in the ‘Particulars of Offence’ concerned the date of the offences; substituting the wording “of Antigua and Barbuda” for “within the United Progressive Party Administration” in the description of the Government; and in relation to the corruption charge, a completely different offence.
Embezzlement is an offence contrary to section 20 (2) (b) of the Larceny Act Cap. 241 of the Laws of Antigua and Barbuda, Revised Edition 1992. The law states:
“Every person who — being employed in the public service of Her Majesty or being a member of or employed in the police force — embezzles or in any manner fraudulently applies or disposes of for any purpose whatsoever except for the public service any chattel, money, or valuable security entrusted to or received or taken into possession by him by virtue of his employment, shall be guilty of a felony….”
The ‘Particulars of Offence’ of the embezzlement charges as contained in the indictment stated that the named Defendant:
“between the 23 rd day of April, 2008 and the 31 st day of December 2015, in Antigua and Barbuda, being a Minister of Government of Antigua and Barbuda, did fraudulently apply one Daewoo motor bus [VIN number inserted] valued at $218,520.00 ECC for his [her] own use.”
The particulars of this offence as it appeared in the indictment did not include the words “being employed in the public service”. The omission has to be revisited later as it is fundamental to the Defendants' challenge of the viability of the charge.
Mr. Sullivan in his opening of the Crown's case, noted that section 48 (2) of the Larceny Act provides for an alternative conviction to embezzlement. The relevant part of the subsection states:
“If on the trial on any indictment against section 20 [embezzlement], it is proved that the defendant stole the property in question, the jury may find him guilty of stealing….”
Conversion is an offence contrary to section 21 (1) (d) of the Larceny Act. The law states:
“Every person who — having either solely or jointly with any other person received any property for or on account of any other person, fraudulently converts to his own use or benefit or the use or benefit of any other person, the...
To continue reading
Request your trial