Judge Errol Thomas, left, and law officials at the opening of the New Law Year
Judge Errol Thomas, left, and law officials at the opening of the New Law Year

Two years ago, officers of the Financial Intelligence Unit (FIU) arrested the men and brought them before a Roseau magistrate.

After reviewing the evidence, then chief magistrate Evelina Baptiste committed them to stand trial at the September criminal assizes in 2013 on charges of money laundering but their lawyers sought leave to apply for judicial review.

They asked the court to quash the decision of the magistrate; issue a declaration that her decision was unlawful, null and void and of no effect and issue an order dismissing the charges of money laundering brought against Gage, Davis and Peltier.

In his judgment, Justice Thomas ruled that the decision of the magistrate was "null and void" and that all the charges against the Claimants were dismissed. He made no order to cost.

The Judge explained that the definition "proceeds of crime" speaks to property derived or obtained through the commission of an indictable or hybrid offence.

"Consequently, the question becomes whether the prosecution is required to prove the commission of the indictable or hybrid offence, or can the prosecution in the complaint merely repeat the words of the statute without proof of an indictable or hybrid offence? It is common ground that Money Laundering Act (MLA) is a penal statute and with that comes the ancient principle that it is to be construed strictly," the Judge said.

He continued: "It is not in doubt, that the Claimants (Jhawnie Gage, Arah Davis and Edgar Peltier) were not informed of an indictable or hybrid offence pursuant to which they were convicted. And, it cannot be doubted as there is no evidence of a conviction in this connection. The requirement of strict construction of the MLA requires that the Claimants should know the offence they face be it indictable or hybrid to give effect to procedural and substantive fairness. Thus, in this context of ambiguity or omission the benefit goes to the Claimants.

"In short, the circumstantial evidence to which the Chief Magistrate refers did not arise as a result of the evidence adduced in relation to the commission of an indictable or hybrid offence whether committed in Dominica or elsewhere."

He then declared that the Chief Magistrate "erred" in placing reliance on the case of R v Anwoir which was decided under a statute that is not related. That the MLA is a penal statute and as such procedural fairness requires that the words commission of an indictable offence require that the Claimants be charged and convicted of such an offence. In context of the omission or ambiguity, in the MLA regarding indictable or hybrid offence the provision must be construed in favour of the Claimants.

It now means that the criminal charge of money laundering of 2013 has been dismissed.

David Bruney represented Edgar Peltier while Douglas Mendes SC and Gina Dyer Munro represented Jhawnie and Arah Gage. Gilbert Peterson SC and Pearl D. Williams represented the Chief Magistrate.