Fri | Dec 15, 2017

Editorial | Preventing shambles of Cash Plus case

Published:Sunday | June 18, 2017 | 12:00 AM

We may, indeed, watch too much television, so have fanciful ideas.

For, in her second lengthy statement of exculpation on her department's handling of the Cash Plus case, Paula Llewellyn rides an argument that, notwithstanding its narrowly legal truth, we find worrying. It has to do with the apparently sharp distance - despite her nods at collaboration - she attempts to draw between her office, as the chief prosecutor of crimes, and the agencies that investigate them.

Ms Llewellyn said: "The ODPP (Office of the Director of Public Prosecutions) has no investigative remit and is not administratively in charge of the clerk of courts in Parish Courts. In the ordinary course of things, prosecutors attend court to prosecute files collated by the police or INDECOM, or any other body which has investigative functions.

"Ordinarily, therefore, prosecutions come after the initiative of the police or other investigators in conducting investigations, or after action upon the due complaint of citizens ... ."

This observation raises some obvious questions, including whether there ought to be protocols for collaboration to be observed by prosecutorial and investigative agencies when significant public-interest matters arise.

 

No witness

 

Ms Llewellyn faced criticism following last month's collapse of the decade-old case against Carlos Hill, the principal of Cash Plus, a presumed Ponzi scheme that went bust in 2007, leaving an estimated 40,000 'investors' out of pocket for an estimated J$14 billion. Prosecutors said they couldn't continue the case because witnesses backed out.

The DPP's decision was understandable, given what was before the court. But such behaviour is not uncommon in Jamaica and it is not unreasonable to question whether other charges might not have been preferred against Mr Hill in which the State was the complainant.

The scrutiny of Carlos Hill began as an investigation by the Financial Services Commission (FSC) of whether he was operating an illegal securities business, despite furnishing investors with 'loan agreements'. In the event, Mr Hill and two of his colleagues were in 2008 charged for fraud under the Larceny Act.

According to Ms Llewellyn, who at the outset of the case was a deputy DPP, "the matter came to our attention under my tenure" in 2010 when her office was asked to take over the incomplete case that was before the Kingston Parish Court. She ended that prosecution, then brought new charges against Mr Hill for fraudulently inducing people to invest "in property other than securities".

This new Supreme Court trial began in 2013. It was, however, discontinued by prosecutors in the face of demands by the defence for documents, which the ODPP said were not in its possession.

Carlos Hill was again charged for his alleged crime - until the case's final collapse.

In this jurisdiction, whether they were induced or otherwise, witnesses often have a change of heart. It is a hazard of which investigators and prosecutors should be aware, and should be factored into the strategic mapping of cases, including the charges they lay.

Further, Cash Plus was a serious public policy matter, given the large number of people involved, and the amount of money involved and its real and potential impact in the Jamaican economy. We are surprised, therefore, that, as Ms Llewellyn claims, her office's involvement came "long after the tail end of the investigative process" by other agencies.

We do not expect the ODPP to abandon its independence or the principle of prosecutorial fairness. But, especially in fundamental matters, it has a responsibility to ensure that the State's best case is presented to the courts.

Perhaps the justice ministry should lead on this, without impinging on the constitutional independence of the DPP.