May 2012: Issue 3
INDICTMENT
The quarterly
Newsletter for
Investigators
and Prosecutors
of Serious
Organised Crime
The Revolution Starts
HERE!
In Saint Vincent and the
Grenadines the House of
Assembly has passed the
Interviewing of Suspects for
Serious Crimes Act 2012
Equally the rights of suspects will be protected as
the “camera doesn’t lie.”
This historic Act will make it mandatory for
interviews to be recorded electronically for certain
offences that include murder and human trafficking.
In our first Edition we had an article “Why Interviews
should be digitally recorded.” This outlined reasons
why there was a need to interview either on video or
on audio to have a permanent and accurate record
of what the suspect said.
This Act will be the first of its type in the Caribbean
and can be a model for the region. It must be
correctly applied and embraced by all. Some may
say that the Act is a brave step but it is also a huge
leap in the right direction to enshrine the rights of
suspects whilst acknowledging that there needs to
be reform of investigative procedures. This Act is
extremely positive news and I hope that other States
will use it as a precedent. The impact will be
immediate and Indictment awaits this advance to
become law across the Caribbean.
For too long there have unnecessary delays at court
with challenges to confessions. This Act will tackle
this issue head on and will reduce the number of
voir dires overnight. This will lead to more guilty
pleas and the protection of investigator integrity.
If you want a copy
of the legislation
contact me at:
dansuter1975@yahoo.com
[1]
In this Edition:
!
!
! !
!
Page
The Reform Agenda
Advanced...............................3
Launch of the National Prosecution.....4
Service in St Kitts and Nevis
How to Reduce Delay....................5
Stop the Press.........................6
Legal News.............................7
Human Trafficking in Belize............8
The Anti-Money Laundering Paso Doble..11
Next Edition..........................14
[2]
THE REFORM AGENDA ADVANCED
In January 2012
discussion about, not
Grenada hosted the
whether it was needed, but
seventh Ministerial UK-
how other States could
Caribbean Forum.
This was an opportunity
to promote the criminal
justice reform work in the
Eastern Caribbean as best
practice for all the
Caribbean.
As part of the conference
the national security
ministers of the Caribbean
were shown the No Witness
No Justice video.
In the full Security
Briefing the Hon. Prime
Minister of Dominica
explained about the launch
of the National Prosecution
Service and this led to
GALLERY
implement.
Also the work of ECFIAT
was congratulated and how
its coordination of
prosecutors and
investigators was leading to
positive results.
Certainly this
endorsement of the work in
the Eastern Caribbean was
testament to all the positive
developments that have been
instigated in the region.
The Eastern Caribbean is
now paving the way for new
ideas and procedures and
your Ministers were proud to
demonstrate this to their
colleagues.
Ministers attending the Seventh
Ministerial UK-Caribbean Forum concluded an
Action Plan with agreements on security.
Namely to enhance collaboration and
coordination in the fight against illegal
drug trafficking among the Caribbean, the
UK and its Overseas Territories through
regional initiatives, greater intelligence
sharing, criminal justice reform and
targeting the proceeds of crime and to
support the Caribbean to engage more
effectively with the Caribbean Basin
Security Initiative (CBSI).
[3]
Top: The photo call for
the Minsters in attendance
Middle: Hon Karl Hood
(Foreign Minister
Grenada), Hon Sam Condor
(Deputy Prime Minister St
Kitts and Nevis), Hon
Jeremy Browne (Foreign
Minister UK) and Hon James
Brokenshire (Home Office
Minister UK)
Bottom: The Hon. William
Hague, Foreign Secretary
UK, at a press briefing
LAUNCH OF THE NPS IN
SAINT KITTS AND NEVIS
Left to right: Deputy High
Commissioner at the British High Commission, Mr.
Phillip Culligan; St. Kitts and Nevis Prime Minister The Rt.
Hon. Dr. Denzil L. Douglas; Attorney General and Minister of
Justice and Legal Affairs, the Hon. Patrice Nisbett and
Commissioner of Police, Mr. C. G. Walwyn
the society in which one lives. Indeed, the oftrepeated maxim ‘If you want peace, work for justice’
is a succinct reminder of this. This is why it is
FOLLOWING the signing of a Memorandum of essential that those who function within the
Understanding between the Commissioner of Police and prosecutorial realm understand the standards that
the Director of Public Prosecutions (DPP), police they are expected to meet,” said the Hon. Prime
prosecutors are now under the purview of the DPP’s Minister to the audience that included Resident Judge,
Office in St Kitts and Nevis.
His Lordship, Mr. Justice Errol Thomas, Senior
Magistrate, Mrs. Josephine Mallalieu-Webbe; Deputy
This pronouncement was made by the Attorney General British High Commissioner, Mr. Phillip Culligan,
(AG) and Minister of Justice and Legal Affairs, Hon. Commissioner of Police, Mr. C. G. Walwyn, police
Patrice Nisbett, at the launching of the National prosecutors and officers in the Department of Legal
Prosecution Service (NPS) and introduction of the Affairs.
Prosecution Code held on 21st March 2012.
Dr. Douglas said that the public needs to have a better
St. Kitts and Nevis’ Prime Minister the Right Hon. Dr. understanding of the prosecutorial dimension of the
Denzil L. Douglas said that the establishment of the judicial realm and pointed to the Message of the Director
National Prosecution Service and the Introduction of the of Public Prosecutions, Mrs. Pauline Hendrickson
Code for Prosecutors are manifestations of the country’s because it encapsulates, most effectively, the essence of
ongoing commitment.
the prosecutorial function.
“The launch of the National Prosecution Unit and the “High qualities are expected of the modern
Introduction of our nation’s Prosecution Code are prosecutor. Good judgment. Complete integrity. An
important manifestations of our commitment to innate sense of fair play. An instinctive sense of what
ensure that throughout the length and breadth of this is right and what is wrong. Fearlessness is also
country, on matters judicial, justice will not only be essential for prosecution decisions are often
done, but it will, indeed, also be seen to have been controversial, and the prosecutor must have the
done,” said Prime Minister Douglas.
strength of character to resist criticism from
whatever quarter, no matter how strident or painful.
He said that the NPS and the Code grow out of a two The judgment of the prosecutor must never be
important values – a commitment to transparency, and swayed by political, media or public pressure. The
profession of prosecutor is an honourable one. It is
not, however, for the faint-hearted,” quoted Prime
an understanding of the importance of standards.
“In any country, those who must on a daily basis Minister Douglas.
make decisions pertaining to matters prosecutorial
bear important and far-reaching responsibilities, He said the introduction of the NPS and the Prosecution
because the decision to prosecute or to not Code represent the type of positive, constructive,
prosecute, and the way in which one actually forward movement that all countries need.
prosecutes, if that is the path chosen, all have a
tremendous impact on the feel and fabric of
St Kitts and Nevis now join, St. Lucia and Dominica with
the implementation of the NPS, who will be next?
[4]
HOW TO REDUCE DELAY - SENTENCE INDICATIONS
In this edition we talk about how sentence indications
could reduce the prison population and ultimately save
The defence should not seek an indication while there
is any uncertainty between the prosecution and the
time and expense.
defence about : (1) an acceptable plea to the
In England and Wales a judge dealing with a case may
indictment, or (2) the facts that will form the basis for
the sentence. Any agreed basis should be put into
be asked by the accused to give, and if asked, is
entitled to give an indication, which should ordinarily
writing before an indication is sought.
be as to the maximum sentence he would impose on
The judge should never be invited to give an indication
the accused if a plea of guilty were to be tendered at
the stage at which the indication is sought: R v
on the basis of what would be, or what would appear
to be a ‘plea bargain’ . He should not become
Goodyear [2005] 3 All E R 117. The procedure takes
involved in any discussions linking the acceptability to
place in public in open court, in the presence of the
accused, with both sides represented and the hearing
the prosecution of a plea or basis of plea, and the
sentence which may be imposed. In short, he is not
recorded in full.
asked to indicate levels of sentence which he may
have in mind depending on possible different pleas.
The potential advantages of such a procedure include,
first and foremost, that the accused himself can make
a better-informed decision whether to plead guilty or
There should not be any opening speech by the
prosecution at this stage, or any speech in mitigation
not. Experience suggests that this would result in an
increased number of early pleas of guilty, with a
by the defence. These will only take place after the
accused has pleaded guilty. Generally speaking, the
consequent reduction in the number of trials, and in
process ought to be very short, the judge bearing in
the number of cases which are listed for trial and then
are aborted at the last minute - usually at considerable
mind that the accused and the public are present; that
the judge may be the trial judge, and that he is simply
inconvenience to those involved in the intended trial,
especially victims and other witnesses. Properly
deciding whether to respond, and if so, how, to a
request that he give an indication of the maximum
applied, there may be a reduced number of sentences
sentence he would pass if the accused pleaded guilty
referred to the Court of Appeal on the ground of undue
leniency. In short, such an improvement in the efficient
at that stage. Since the case may yet proceed as a
trial (following a plea of not guilty),and if it does, no
administration of justice will not impinge on the
accused’s entitlement to tender a voluntary plea.
reference may be made to the request for a sentence
indication, reporting restrictions should normally be
imposed, to be lifted if and when the accused pleads
The facts of the case must be agreed as the basis for
sentence, and, if necessary put into writing by the
or is found guilty.
parties. Without such agreement, the judge should
refuse to give an indication: otherwise he may become
If the procedure is properly followed, there should be
very little need for the judge to involve himself in
inappropriately involved in negotiations about the
discussions with the advocates, although obviously he
acceptance of pleas and any agreed basis of plea.
may wish to seek better information on any aspect of
the case which is troubling him.
An indication, once given, is binding and: (1) remains
binding on the judge who has given it; and (2) binds
Is this an answer to growing issues of remand
any other judge who becomes responsible for the
populations and delays. I would be grateful for your
case. If, after a reasonable opportunity to consider his
position in the light of the indication, the accused does
views.
not plead guilty, the indication ceases to have effect.
[5]
STOP THE
PRESS
For an interesting
real life story of
drug trafficking from
St. Lucia read:
http://
www.thesite.org/
community/reallife/
truestories/
drugsmuggling
“Looking back at it, I
can't believe I was so
naive. But at the time
I didn't know
anything about drug
trafficking. I'm sure
people who listen to
my story will see the
warning signs I
missed and think
"how could she be so
stupid?" I definitely
know a lot about drug
smuggling now”
USA
committed a series of acts,
which had a tendency to
A Vincentian is among three pervert the course of
justice, in that he
persons who pleaded guilty
facilitated the transfer of
to conspiracy to import
heroin aboard a cruise ship. the criminal case against
Gavin Excell, 36 of Jamaica, Frederick Ryan Grant from
District “B” Magistrates’
John Swart Garth 39 of
Court to the District “A”
Nicaragua and Kishurn
Neptune 28 of St.Vincent and Traffic Court, which
the Grenadines, have pleaded resulted in no criminal
conviction for trafficking
guilty to drug charges to
their roles in a conspiracy being recorded against
to import heroin and cocaine Grant.
via cruise ship Royal
Caribbean Enchantment of the Grenada
Seas. The men were sentenced
to time served. Witnesses
A major drug trafficking
testified that cruise ship
ring involving a Jamaican
crew members Gavin Excell,
John Swart Garth and Kishurn connection has been broken
by
members
of
the
Neptune picked up the heroin into
Financial
Intelligent
Unit
and cocaine from an
individual in the Dominican (FIU), resulting in three
Republic and transported the persons appearing before a
Magistrate
on
drugs on the cruise ship to local
Monday. The
arrest
of
the
Baltimore.
individuals
follows
an
extensive
period
of
Barbados
investigation by the FIU
Vincentian national Andrew
lasting over three months
Harry is among three men
into
the
exporting
of
arrested, charged and
cocaine from Grenada and
remanded to prison in
using the monetary profits
Barbados on drug related
for personal gains.
charges. Harry, Marvin
Walcott, 36, of St. Lawrence Those arrested and charged
and 60 year old Andrew
are
Pinero
Thomas
of
Clarke of Parish Land Christ Paradise,
St.
Andrew’s,
Church have been charged
Jason Gelliseau from River
with attempting to bring
Road,
St.
George’s,
and
cannabis into Barbados. The Jamaican
Waynez
Worth
three were apprehended off
Bharrat.
the St. Phillip coast,
during an operation by the
Royal Barbados Police Force St. Thomas
Drug Squad and the Barbados
Aundel Benoit who set sail
Coast Guard with 37
from Grenada in his vessel
kilogrammes of cannabis.
the Laural, was convicted
after jury trial of two
The Nation newspaper in
counts of possession with
Barbados on 22nd March
intent to distribute a
reported that a retired
controlled substance and
police inspector accused of
importing a controlled
perverting the course of
substance involving 550
justice in a drug
pounds of cocaine. He will
trafficking case was charged
be sentenced on 10th May
that between October 24,
2012.
2009, and March 10, 2010, he
[6]
LEGAL NEWS
With steps to have the CCJ in TT and launch
of a Protocol in Jamaica it has been a busy
2012 already!
CCJ for Trinidad?
Following the statement of Prime
Minister Kamla Persad-Bissessar, in the
Trinidad and Tobago Parliament on 25th
April, removing the right to appeal
criminal proceedings to the Privy Council,
there has been much debate whether a
death sentence can still be appealed to
the Privy Council on the basis of being a
cruel and unusual punishment contrary to
section 5 of the Constitution of Trinidad
and Tobago. One editorial (Newsday 26th
April 2012) commented that: “Legal
luminaries yesterday say the move
all cases, including capital
cases where it is appropriate
to do so. Follow the link
below for the full judgment:
http://www.eccourts.org/
judgments/decisions/2012/
COA/stkitts/
the sole or decisive basis of the
annonier"
conviction; and third, where a conviction
was based solely or decisively on the
Protocol Launched in Jamaica
The Decision to Prosecute: a Jamaican
the way for the resumption of
when exercising their prosecutorial
hangings if the matter were to now be
functions.
Although former Chief Justice
Michael de la Bastide was quoted as
saying: “The issue of hanging is one
that will not be adjudicated by the
CCJ, as long as the CCJ is restricted to
hearing criminal appeals...when
someone challenges an execution, that
person does so on a constitutional
motion as it is alleged that their
constitutional rights are being
infringed."
document, which she describes as a
ensuring that gang-related crime was
pioneering effort in providing a written
prosecuted, and that allowing witnesses
document for the public, is part of efforts
to give evidence anonymously was an
to demystify some of the processes in the
important tool in enabling such
decisions her office takes in reviewing
prosecutions. This will be an important
cases. "I have stated publicly from the
decision in Antigua and Barbuda for
time of my appointment as DPP from
prosecutors applying the witness
March 2008, that as part of my
anonymity sections of the Evidence
responsibilities as DPP I would also
(Special Provisions) Act 2009 and to
wish to go on to provide a framework
encourage similar legislation across the
to enhance prosecutorial best
region. The judgement can be found at:
practices" she said.
http://www.echr.coe.int/echr/
was born during a conference for DPP's
inmates have successfully appealed their
she attended in St. Lucia, last year (see
sentence. One conviction was quashed
the second edition of Indictment) imprisonment.
place.
there was a clear public interest in
In St. Kitts and Nevis four death row
sentences commuted to life
the reliability of that evidence to take
DPP, Paula Llewellyn, explained that the
The DPP said the idea for the protocol
plead and the other appellants had their
Court had to satisfy itself that there were
In this case, the Court emphasised that
ECSC Death Penalty Decision
as the appellant was assessed as unfit to
evidence of anonymous witnesses, the
sufficient counterbalancing factors,
Protocol was launched on 13th April. Like including strong procedural safeguards, to
the Code for Prosecutors, it sets out the permit a fair and proper assessment of
processes and methods prosecutors use
court.”
evidence of the anonymous witness was
RomeoCannoniervTheDPP.pdf#search="c
toward the CCJ could, in theory, clear
determined afresh by a local supreme
DPP of
Jamaica, Paula
Llewellyn
homepage_EN
Proceeds of Crime Workshop
In a ground breaking advocacy training
workshop funded by ECFIAT of the British
Witness Anonymity Decision
High Commission in Bridgetown and
The European Court of Human Rights in a implemented with the Judicial Education
Institute of the ECSC, Prosecutors and
decision from the UK on witness
anonymity (Ellis, Simms and Martin v UK)
Judges were trained on Confiscation
that section 52(2) of the Eastern
concluded, that in cases concerning
proceedings. The courses held in St Lucia
Caribbean Supreme Court Act was
anonymous witnesses, Article 6 § 3 (d)
and Grenada were opened by the Hon.
unconstitutional on the basis that it
imposed three requirements: first, there
Chief Justice Hugh Rawlins.
imposed an arbitrary limitation of the
had to be a good reason to keep secret
appellant’s right to appeal. In future the
the identity of the witness; second, the
Court of Appeal can grant extensions in
Court had to consider whether the
A key outcome of the judgment was
[7]
Indictment is now watching to see the
training put into practice!
HUMAN
TRAFFICKING
IN BELIZE
“The victims of
modern slavery have
many faces. They
are men and women,
adults and children.
Yet, all are denied
basic human dignity
and freedom. All
too often suffering
from horrible
physical and sexual
abuse, it is hard
for them to imagine
that there might be
a place of refuge” President Barack
Obama
In this article Ann-Marie Smith, Chief Magistrate, explores the increase of
organised crime gangs to traffic innocent victims for profit
Before I came to Belize, my knowledge of the crime of
Trafficking in Persons was very limited and sketchy. However,
within two weeks of my taking office I was visited by two
prosecutors from the US State Department to apprise me of the
situation in Belize and in Central America and to bring me up to
speed. Since then I have sat on a number of cases and have
become quite familiar with the offence, the history of the Belize
legislation and the obligations under the Palermo Protocol. This
article will set out some of the legal definitions under the act.
The Trafficking in Persons (Prohibition) Act 2003 is found in the
Laws of Belize at no 18 of 2003. The offence of trafficking and
other offence are set out in Part II of the Act. Trafficking in
persons is defined as 3. (1)
A person who engages in, conspires to engage in, attempts
to engage in, assists another person to engage in, or
organizes or directs another person to engage in trafficking
in persons commits an offence and is liable on summary
conviction to imprisonment for a period of not less than
Belize is a source, destination, and transit country for men, one year but which may extend to five years or to a fine of
women, and children subjected to sex trafficking and forced ten thousand dollars.
labor. A common form of trafficking in Belize is the coerced
prostitution of children, particularly situations in which poor The literature and data collected shows that trafficking is a
parents push their school-aged children to provide sexual process. It begins with the recruitment of the victim from the
favors to wealthy older men in exchange for school fees, place of origin, the transportation to another destination via
money, and gifts. Child sex tourism, involving primarily U.S. exploitation and coercion where the exploitation or debt
citizens, has been identified as an emerging trend in Belize. bondage continues. The Act does cover these aspects and
Additionally, sex trafficking and forced labor of Belizean and criminalizes these actions. Sub section (2) states that:
foreign women and girls occurs in bars, nightclubs, and
brothels throughout the country. Foreign men, women, and
children, particularly from Guatemala, Honduras, El Salvador,
Mexico, and Asian countries migrate voluntarily to Belize in
search of work; some may fall victim to sex trafficking or forced
labor. Children and adults working in the agricultural and fishing
sectors in Belize are vulnerable to forced labor. Forced labour
has been identified in the service sector amongst the South
Asian and Chinese communities of Belize, primarily in
restaurants and shops with owners from the same country.
The recruitment, transportation, harbouring or receipt of a
child, or the giving of payments or benefits to obtain the
consent of a person having control of a child, for the
purpose of exploitation, constitutes trafficking in persons
irrespective of whether any of the elements of the
definition of “trafficking in persons” is present or not in any
case.
[8]
The Act also makes it an offence to
unlawfully withhold identification papers
or travel documents, makes it an offence
to engage in the transportation of a
person for the purpose of exploiting that
person as a prostitute. It also provides for
the court to make an order of restitution
to the victim of trafficking. Significantly,
these trials are to be held in camera and
the past sexual history or behavior of the
victim is not to be adduced in court.
nations to work together to combat it.
commercial sexual exploitation of
For the first time, there was a global
children (CSEC), exploitative labour
consensus that all acts of trafficking in
practices or the removal of body parts;
persons should be criminalized, including
• Suspending parental rights of parents,
trafficking for forced labour, slavery and
caregivers or any other persons who
slavery-like practices. The Protocol held
have parental rights in respect of a
that governmental responses should
child should they be found to have
incorporate the “3 P” paradigm:
trafficked a child;
Prevention, Prosecution and Protection.
The Trafficking Protocol entered into force • Ensuring that definitions of trafficking
reflect the need for special safeguards
on 25 December 2003. By March 2012,
and care for children, including
the Protocol had been signed by 117
appropriate legal protection;
countries, and there were 147 parties.
The Protocol covers the following:
• Ensuring that trafficked persons are not
punished for any offences or activities
Defining
the
crime
of
trafficking
in
•
related to their having been trafficked,
human beings; essentially, trafficking is
such as prostitution and immigration
the transport of persons, by means of
violations;
coercion, deception, or consent for the
Part three of the Act places positive
obligations on the government to assist
the victims of trafficking.
The Belize
Police Department, the Department of
Immigration, Nationality Services, and
other investigative officers are mandated
to follow the guidelines as set out in sub
section 11 of the Act. In addition to that,
the Act is quite revolutionary as it
obligates the government in the form of
the Director of Public Prosecutions to
inform a victim of trafficking about the
progress of the criminal court
proceedings. The Director of Immigration
and Nationality services shall also inform
a victim of trafficking of decision for the
return of the victim to his or her country
of origin and the procedures for seeking
permanent residency status or citizenship
of Belize, where the victim qualifies to
apply for permanent residency or
citizenship status..
Where a victim
wishes to return to his or home country
the Department of Immigration and
Nationality Services shall, in cooperation
and after consultation with nongover nmental organizations and
international organizations develop plans
for the safe return of victims of trafficking.
Special considerations are to be given to
children who are the victims of trafficking,
in a manner that is in the best interest of
•
the child.
The Palermo Protocols
purpose of exploitation such as forced
or consensual labor or prostitution:
"Trafficking in persons" shall mean
the recruitment, transportation,
transfer, harbouring or receipt of
persons, by means of the threat or
use of force or other forms of
coercion, of abduction, of fraud, of
deception, of the abuse of power or
of a position of vulnerability or of the
giving or receiving of payments or
benefits to achieve the consent of a
person having control over another
person, for the purpose of
exploitation. Exploitation shall
include, at a minimum, the
exploitation of the prostitution of
others or other forms of sexual
e x p l o i t a t i o n , f o rc e d l a b o u r o r
services, slavery or practices similar
to slavery, servitude or the removal
of organs... The consent of a victim
of trafficking in persons to the
intended exploitation set forth
[above] shall be irrelevant where any
of the means set forth [above] have
been used.”
Facilitating the return and acceptance
of children who have been victims of
cross-border trafficking, with due
regard to their safety;
The Palermo Protocol focused the global
Prohibiting the trafficking of children
community’s attention on the scourge of •
(which is defined as being a person
human trafficking and the need for
under 18 years of age) for purposes of
Statute in the
region
• Ensuring that victims of trafficking are
protected from deportation or return
where there are reasonable grounds to
suspect that such retur n would
represent a significant security risk to
the trafficked person or their family;
• Considering temporary or permanent
residence in countries of transit or
destination for trafficking victims in
exchange for testimony against alleged
traffickers, or on humanitarian and
compassionate grounds;
• Providing for proportional criminal
penalties to be applied to persons
found guilty of trafficking in aggravating
circumstances, including offences
involving trafficking in children or
offences committed or involving
complicity by state officials; and,
• Providing for the confiscation of the
instruments and proceeds of trafficking
and related offences to be used for the
benefit of trafficked persons.
The Convention and the Protocol obligate
ratifying states to introduce national
trafficking legislation and this has been
done in Belize. The Belize Act closely
resembles the tenets of the Protocol.
ANTIGUA AND
BARBUDA
BARBADOS
ST KITTS &
NEVIS
ST LUCIA
ST VINCENT AND THE
GRENADINES
Trafficking in
Persons
(Prevention)
Act
Transnational
Organized
Crime Act
Trafficking
in Persons
(Prevention)
Act
CounterTrafficking
Act
Prevention in
Trafficking of
Persons Act
[9]
Guilty
Human Traffickers
Left: Yolande Garcia
Below: Narcissa
Orellana, the first
person to be convicted
of human trafficking in
Belize
Case studies of two defendants found guilty of human trafficking
Orellana
Garcia
Narcisa “Nancy” Orellana, 54, of Santa Elena Town, Cayo
District, began an eighteen-month sentence in prison after
being convicted of attempted trafficking in persons last
Tuesday in San Ignacio.
Orellana, who had no legal representation at her trial, was
accused in April of 2010 by a minor, 15, resident in Valley of
Peace, Cayo District, of recruiting her to work in the sex trade
at her house in Santa Elena under cover as a domestic.
They had met at a supermarket in town where the minor was
looking for work. The minor alleged that while she was told she
would be working at the residence as a maid, when she
reported to work she was made a waitress at Orellana’s bar,
Sierra Friends, downstairs of her residence.
The minor reported to police that a “client” of Orellana visited
the bar while she was working and requested to have sex with
her. When she refused, she said, Orellana allegedly tried to
coerce her into it by telling her that while she was “young and
pretty,” she should grasp the opportunity to be a prostitute.
The minor refused again, and left Orellana’s employ the next
day. No mention was made of what happened to the man in
question.
The case, which took some 20 months to come to trial, was
prosecuted by Director of Public Prosecutions Cheryl-Lynn
Vidal, and is the first recorded conviction for this offence on
Belize’s books.
Orellana faces at least one other charge in relation to separate
reports of human trafficking and is serving an 18-month
sentence.
Honduran national Yolanda Garcia, 41, was convicted of
trafficking in persons, the second such conviction in a span of
two weeks following a verdict handed down on January 31
2012 against Narcisa Orellana.
Garcia, a hairdresser by trade, was charged after a report by a
female minor, 17, to police accusing her of hiring the minor to
work in her bar, La Serenita, on Regent Street West in Belize
City, and including among her duties, giving sexual favors to
customers for money.
The minor, who is originally from the Cayo District, testified in
camera in court that she had just left school when she was
hired as a waitress.
She alleged that she was told by Garcia that sex with patrons of
the establishment for money was part of her work, despite her
refusing to do so.
Senior Counsel Simeon Sampson defended Garcia, who, in her
testimony, denied hiring the girl and denied the allegations
against her.
Garcia also told the court that the 17-year-old made up the
story against her after she was found in another bar in San
Pedro Town where she was alleged to be working, and told
police when she was picked up that she was working for her
(Garcia) in Belize City.
Chief Magistrate Ann-Marie Smith heard the case, as she did
with Orellana, and handed down a custodial sentence of twelve
months. [10]
The anti-money
laundering Paso
doble: St.Vincent and
the Grenadines
Antonio “Que Pasa” Gellizeau
and Winston Robinson
convicted
Jotobin sailed into the Bequia Harbour and
docked alongside another yacht Orion.
Jotobin was captained by Bermudan
Winston Robinson with Trinidadian Kent
Andrews as deckhand. Antonio Gellizeau
was the captain of the Orion; five boys and
an adult male were also on board at the
time. During the search of Orion, Gellizeau
remarked in Vincentian parlance “all you
always come at the wrong time”.
Ironically, the timing could not be more
imperfect for him.
Que Pasa? In its ordinary dimension,
this spanish greeting is a mark of gaiety
and camaraderie but in our Vincentian
society that name is also tinged with
notoriety. It is synonymous with a man
who built his own criminal dynasty;
overtime, acquiring an air of
“untouchable”.
Both vessels were initially searched in the
wee hours of the morning at Bequia
Harbour. It was upon a second search of
Jotobin at the Coast guard base in
St.Vincent on the 5th of April 2008 that
$1,733,463 US
($4,628,346 EC) was
discovered; monies were concealed
beneath hardened foam in water tanks,
one in the left cabin and the other in the
right cabin of the vessel.
He flaunted his criminal proceeds like a
carnival masquerader until his day of
re c k o n i n g fi n a l l y a r r i v e d . O n g o i n g
investigations gained some mileage in
2008; turning the spot light on events
which I will highlight briefly.
In his caution statement, Gellizeau
attempted to distance himself from any
links to the vessel Jotobin, his codefendants particularly Winston Robinson
and importantly the large sum of money
recovered.
Paso doble is another spanish term literally
translated as double-step. Convictionconfiscation is that double step to which
the Prosecution of Antonio Gellizeau will
have to tango. Definitely, a triumph at one
hurdle sets the pace for the next.
Antonio Gellizeau was charged with two
money laundering offences: (1) Concealing
and (2) Bringing into St. Vincent and the
Grenadines his proceeds of crime
(Proceeds of Crime and money laundering
Prevention Act No 39 of 2001 as amended
by Act no.8 of 2005, section 41 (1) (a) and
41 (1) (b) respectively) . Winston Robinson
and Kent Andrews were charged with (1)
Concealing and (3) Bringing into St.
Vincent and the Grenadines another
person’s proceeds of crime. Winston
Robinson faced an additional custom
charge.
Fine Facts:
On the 4th of April 2008, a combined party
of FIU and other police units were on
surveillance in Bequia (the closest
Grenadines Island to St. Vincent). They
testified that they observed when a yacht
EVIDENCE
Top: The Jotobin
Middle: some of the $1.7
US seized from the vessel
Bottom: The money was
concealed beneath hardened
foam in water tanks
[11]
THE TRIAL
The summary trial commenced on the 2nd
of August 2011 before Chief Magistrate
Sonya Young with Gilbert Peterson SC as
lead Counsel with junior counsel Sejilla
Mc Dowall and Lateisha Sandy. Several
trial phases later, Chief Magistrate Sonya
Young on the 9th of March 2012 convicted
both Antonio Gellizeau and Winston
Robinson of the money laundering
charges. Kent Andrews was acquitted of
both charges.
the boat to one Nicholas Stewart in St.
Lucia. Genchi agreed that upon
conclusion of the agreement for sale of
Jotobin between himself and Gellizeau,
he observed that the name Nicholas
Stewart appeared on the document
drafted by his (Genchi) attorney. However,
Genchi was clear that negotiations for the
sale and transfer of Jotobin were strictly
with Gellizeau. The defence strategy was
rather misguided as Counsel sought
aimlessly and unsuccessfully to discredit
Alas, Prosecution basked in victory that G e n c h i w h i l s t o t h e r w i t n e s s e s ,
two critical convictions were secured.
unopposed, confirmed that Gellizeau was
involved in circumstances surrounding
Key aspects of the Trial:
the sale, acquisition and the repair of
Jotobin at the material time.
Counsel for Gellizeau, Theodore Guerra
SC sought to extinguish claims that Relatives and colleagues gave evidence
Jotobin belonged to Gellizeau and in as to Gellizeau’s general modus operandi
doing so, imputed that the vessel was in handling financial transactions. It
owned by JT yachting of which Antonio became increasingly clear that Gellizeau
Genchi was director. As such, this Italian had a history of concealing his assets
businessman Antonio Genchi was subject through their accounts. Gellizeau’s
to strenuous cross examination since he relatives and friends, during cross
had been the previous owner of Jotobin examination, may have intended to
and the vessel was still registered as a JT redeem themselves by casual agreeing to
Yachting asset.
the defence check list of Gellizeau’s
employment history. These references to
The story pedaled by Gellizeau’s counsel
previous jobs were not substantiated.
was that Antonio Genchi had instead sold
Above: Winston Robinson
who ran a defence that
the money was savings
from previous employment
and he had buried it in
the ground in Bermuda
Antonio “Que
Pasa” Gellizeau
[12]
A Collaborative Effort
t o t r a n s f e r J o t o b i n , f o l l o w i n g reinforcing established cases such as R v
arrangements for sale between Genchi Anwoir and R v Craig. It formed part of
A F o r e n s i c a c c o u n t i n g r e p o r t , and Gellizeau.
the closing arguments prepared by
communication data (Digicel and LIME),
Gilbert Peterson SC; further solidifying
forensic phone analyses and reports (cell Robinson boldly explained that Stewart the case against the accused persons.
phones and PDA data), business records was an old army comrade whom he had
and customs documents all featured in not seen in over 40 years but with whom Success
the Prosecution’s case to accomplish he reconnected in St.Lucia and agreed,
several objectives which included the without payment, to take Jotobin to The Prosecution team competently
shouldered by the prolific Gilbert
following: To establish the frequency of England.
Peterson SC was greatly assisted by DPP
communication between co defendants,
There
was
an
obvious
conflict
with
his
Colin Williams and consistently supported
to confirm a pattern of shady financial
previous
statement
that
he
was
merely
by the Director of FIU Grenville Williams,
dealing and to track the movement of the
vessel Jotobin and Orion over a period sailing from the Grenadines. Robinson FIU legal officers and investigators.
and also specific to the key event. informed the court that he intended to sail Witnesses locally, regionally (Bermuda,
Specific objectives represent the strands to the Azores from Bermuda but he St.Lucia) and internationally (USA) were
o f e v i d e n c e p o o l e d t o g e t h e r t o redirected to St.Lucia for two reasons: to corralled and their involvement in the
accomplish the overall objective: money avoid bad weather and to have the vessel process was vital. Furthermore ECFIAT
checked out to ensure it was fit for a long h a s l e n t i t s u n w a v e r i n g s u p p o r t
laundering conviction.
trip. He added that on his way down, he throughout. Their resources and guidance
Winston Robinson: The farcical defence then decided to go to St.Vincent to pick are truly noteworthy.
Expert Evidence
Neither Gellizeau nor Kent Andrews gave
evidence. Robinson took the court
through a paradoxical defence that
proved highly advantageous to the
Prosecution. Winston Robinson, a long
s t a n d i n g b o a t h o m e o w n e r,
unconvincingly, told the court that he had
$1.9 million US as his life saving and that
the money on board Jotobin belonged to
him. He mentioned that he accumulated
that money doing various jobs; fishing
and taking tourists on boat trips in
Bermuda. He staunchly denied that he
had previously said, under caution, that
he had no idea who put the money on the
boat and that he had never touched it.
He admitted that he concealed the money
on the boat, with foam, to protect against
pirates, knowing that he would have had
to dig it up when necessary.
He explained that he had buried the
money in a hole on someone’s land in
Bermuda but did not see it fit to disclose
their identity.
Winston Robinson intended, he says, to
sail to England then Australia. He became
acquainted with Jotobin through Mr.
Nicolas Stewart. The identity of Nicholas
Stewart could not be verified through
public records in St.Lucia yet this name
mysteriously appeared on the document
up another passenger, Nolly Jack who
coincidentally is one of Gellizeau’s
associates.
The vessel had no food
stores to indicate that he was equipped
for any long journey. The defence was
fatalistically fanciful.
Columbus corner: Scroll the globe and
put the journey in perspective: visualize
how this vessel travelling from Bermuda
(Northern Caribbean) headed to Azores
(off coast of Portugal) but found its way to
Bequia, south of St. Vincent.
Identification/Recognition: Recognition
is reserved for persons well acquainted
with each other. However, Robinson said
of Gellizeau, “I don’t know much about
him.” It was apparent from the totality of
the evidence that he was an associate of
Gellizeau. Customs records put Winston
Robinson on the vessel Orion in 2006.
This same Orion owned by Gellizeau. In
all, Robinson’s depth of allegiance is
highlighted by the ultimate act of
attempting to “take the rap” for Antonio
Gellizeau. Adversely, Winston defence
placed Gellizeau in a position of
stalemate.
Key case law
DPP v A A Bholah [2011] UKPC 44
(featured in the previous edition of
Indictment) is truly a timely decision
[13]
The prosecution takes confidence in the
pedigree of the decision made by the
learned Chief Magistrate who is
thoroughly in tune with this developing
area of law.
The success of this prosecution speaks
volumes for the contribution of its
enablers and drivers. A watershed
decision indeed!
Next step
•
CONFISCATION
Article by Sejilla Mc Dowall Crown Counsel
in the Office of the Director of Public
Prosecutions in St Vincent and the
Grenadines
NEXT EDITION
Again we have a busy few months
with the launch of the video-link
v=MkfmsBexqtI and the short
version at: http://
www.youtube.com/watch?
v=OfNsiPBZLjg&feature=relmfu
project for vulnerable witnesses in
Saint Vincent and the Grenadines, the
witness charter in Saint Lucia and the
second meeting of the Caribbean
The film has been viewed from
Japan to Brazil and this is a
production to assist you as
Association of Prosecutors in the
Investigators and Prosecutors to
Caymans.
promote greater witness
participation. Therefore we
THE GUIDE
We have now distributed over 300
copies of the second edition
encourage you to show as part of
your community engagement
programmes referred to in Chapter
8 of the Guide
throughout the region - please feel free
to contact us with any comments
about how you have used the Guide
and whether we can make any
improvements
NO WITNESS NO
JUSTICE
We are also pleased to announce
that the School Information Pack will
soon be available for distribution after
filming of the mock trial was
completed. More news in the next
Thanks
Indictment wishes to convey its
you can now watch the full 25 minutes
www.youtube.com/watch?
Rudyard Kipling
edition
The final cut has been made and
version at: http://
”Words are, of
course, the most
powerful drug used
by mankind.”
contributions to this edition. By
thanks to Ann-Marie Smith and Sejilla
sharing our knowledge we empower
Mc Dowall for their valuable
those around us!
INDICTMENT
FUNDED BY
!
Please send us articles
We are always looking for interesting news to share and experiences to demonstrate good practice to
others in the region.
If you have had any great results or would like the region to know about what you are doing in the
efforts against organised crime then please contact me at:
dansuter1975@yahoo.com