By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
COURT of Appeal judges yesterday questioned whether the new Gaming Act, in its present state, legitimised previous unlawful conduct of web shop gaming operators.
The dispute arose in the substantive appeal hearing of FML Group of Companies CEO and President Craig Flowers who is contesting his conviction for permitting his premises to be used for a lottery and promoting, organising and conducting a lottery in connection with an April 28, 2009 raid on one of his web shops on Wulff Road.
A magistrate ordered Flowers to pay a total of $10,000 in fines or spend two years in prison when he convicted the web shop operator of the offences in Magistrate’s Court on October 3, 2011.
Police had also seized $834,629.32 from the premises, which the court had ordered confiscated as the proceeds of illegal gambling.
Flowers retained Sir Richard Cheltenham, QC, Alfred Sears, QC, and Charles McQuay to argue his appeal.
Franklyn Williams and Ambrose Armbrister are the Crown respondents.
In yesterday’s proceedings before Justices Anita Allen, Abdulai Conteh and Jon Isaacs, Mr Sears commenced the appeal with reliance on an affidavit filed by his client with respect to the recent passing of the Gaming Act.
He noted that his client, in order to get a licence to continue his operations in accordance with the law, paid upwards of $750,000 in penalties and taxes for six years of gaming activity going back to 2008 after making full disclosure of profits and earnings to the minister responsible for gaming in December 2014.
“It will be our respectful submission that this Act made lawful the alleged activities he was charged and convicted of,” Mr Sears said.
“Does it really legitimise previous unlawful conduct?” appellate President Justice Allen asked.
“It is our submission that the provision is for retroactive effect,” said Flowers’ lawyer.
“Was there not a penalty imposed?” Justice Isaacs asked.
Mr Sears said his client’s situation “is a classic case of separation of powers.”
Justice Conteh noted that Parliament used its powers to create said provision, which he likened to an indemnity.
“It’s the only way Parliament can do it,” said Justice Conteh.
“Does it do that or does it make it lawful from that date prospectively, going forward?” Justice Allen added.
Mr Sears emphasised that the provisions spoke to gaming taxes, business licenses and penalties with respect to 2008-2014 where gaming operators, who made full disclosure to the government, were required to pay six years worth of licenses and fees for gaming “as though it was lawful” for the mentioned period.
Justice Allen, however, still did not appear to be convinced.
Justice Conteh said the Act allowed “for the government to devise a way to get back money.”
Mr Sears said the Gaming Act had a “very narrow objective” and added that “the three deeming provisions are taken together with the fulfilment of the various requirements, have the effect of legitimising the activities of the appellant…retrospectively for the six-year period.”
The court asked the lawyer if there were case authorities to reference. Mr Sears said there were none for this jurisdiction.
The judges noted that the new gaming laws were not simple or clear in its wording.
Mr Sears conceded that Parliament could have made the provisions clearer on whether or not they would apply retroactively.
Nevertheless, he said, his client had fully complied with the conditions set out by the provisions “which is as close to a gaming provision as one gets.”
Mr Sears emphasised that the “object of the Act is to regularise the existing gaming enterprises.”
“The question is whether it wipes away the convictions,” Justice Allen replied.
“We submit that having fulfilled the conditions and the financial exposure the appellant assumed, that the review period would have had the effect of regularising and legitimising the conduct of the enterprise,” said Mr Sears, adding that the court had the power to interpret otherwise, “if there is any doubt or ambiguity in the Act.”
Justice Isaacs pointed out the socio-economic exclusivity of the provisions and that based on the penalties and fees the government required in order to continue operations “it would have to be a very profitable establishment.”
In spite of Mr Sears’ arguments, Justice Allen, however, still questioned how the new Gaming Act, “wipes away convictions under the old Act.”
“I believe the conditions set were to allow persons going forward to partake in the industry but it doesn’t necessarily make the Act retrospective,” said Justice Isaacs.
“To the extent of nullifying offences that were committed,” Justice Conteh said in agreement.
Justice Isaacs asked Mr Sears if Prime Minister Perry Christie, “in his communication to the House, in his speech, was it clear that it would nullify the previously unlawful conduct?”
“It is the implication,” said Mr Sears.
The hearing is scheduled to continue on April 29.
Comments
Well_mudda_take_sic 9 years ago
The law was what it was then and is what it is now. Our legislators clearly never intended for the new web shop gaming laws to be applied retroactively or with retrospective effect. Had they done so, there would have been no need for the numbers' bosses (or front men) like Flowers and Bastian to go through an application and due diligence process to obtain a license. Moreover, they would not have been subject to taxes and penalties determined in part on the quantum of fees they would have paid had their illegal activities been legal during the past period of time stipulated in the relevant new legislation. The imposition of taxes and penalties does not (and cannot) of itself create past legality never intended. Take the U.S. tax code for example: The IRS has always maintained that a taxpayer's winnings or earnings from illegal (criminal) gambling activities constitute taxable income. Sears and his client are wrongfully asking our Court of Appeals to create new or amend existing law by interpretation. This is a matter for our legislators and not the Honourable Judges that sit on our Court of Appeals. It is surprising and disappointing that this matter was even set down for a hearing.
-QUOTE- Grounds for a criminal appeal must be based in law and not facts. In other words, an appeal allows a defendant to attack the judgment of the trial court on legal, not factual grounds. To understand what this means, it helps to note that in a criminal trial, the prosecutor tries to convince the jury that the facts of a case show that a law was violated by the defendant, while the judge gives the jury instructions about what the law means and makes sure that both the lawyers and the jury follow the law throughout the trial. The only job the jury has throughout a trial is related to the facts of the case. The jury decides the facts, including whether witnesses are telling the truth and whether the facts when added up and examined show that a crime was committed and that the defendant committed the crime, beyond a reasonable doubt.
Appealing a judgment on legal grounds means that the error in the judgment resulted from a problem with the law related to the case. Factual grounds are disputes about factual determinations made by the jury, such as the value of a piece of evidence or the credibility of a certain witness. An appellate court will very rarely review factual errors, unless there was a plain error, meaning the factual error of the trial court was very obvious. In order to prevail on the appeal, the legal error must be material. This means that the error must have been egregious enough to affect the outcome of the defendant’s case. If the error is not material, or is found to not have affected the outcome of the defendant’s case, the appellate court will hold the error harmless and uphold the verdict of the trial court. -UNQUOTE-
Reality_Check 9 years ago
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