By LAMECH JOHNSON
Tribune Staff Reporter
WEB shop operator Craig Flowers walked away from the Court of Appeal yesterday with a clean record after judges squashed his convictions and sentences concerning a raid on one of his gambling houses in 2009.
The court also ordered that more than $800,000 that was seized from his business be returned.
While the FML Group of Companies CEO and president was unable to persuade Justices Anita Allen, Abdulai Conteh and Jon Isaacs on the argument that the new Gaming Act legitimised previous unlawful conduct of web shop operators, the court did find that the charges in his case were duplicitous and had not been proven at trial based on the evidence produced.
In addition to having his convictions squashed, the appellate court further ordered the return of the $834,629.32 seized from his web shop on April 28, 2009.
“The rule against duplicity,” Justice Allen noted in the written ruling, “is an old common law rule which relates to the form of an indictment, it operates to prevent more than one offence being charged in one count so as to enable the accused person to know and to be in the position to properly plead to the offence alleged against him.”
“Where the count discloses one offence which may be committed in more than one way, the authorities suggest that the charge will not be considered duplicitous. In the present case, the charge alleged two modes by which premises may be used for the purpose of a lottery.”
Concerning the new Gaming Act, Justice Allen emphasised that “it is well settled that laws are presumed to be prospective, unless, inter alia, a contrary intention appears from the wording of the Act.”
“Also, the Interpretation and General Clauses Act states that where a written law repeals another written law, the repeal does not affect anything duly done or duly suffered under the repealed law.”
“In the present case, the wording of the Gaming Act was clearly prospective and no intention to retroactively legitimise/decriminalise gaming activity appeared. Moreover, the aforementioned provision of the Interpretation and General Clauses Act prevented the appellant’s submission in relation to the retrospective operation of the Gaming Act.”
“To the detriment of the prosecution’s case was its failure to adduce evidence demonstrating, to the requisite standard, that the appellant knew and permitted the premises to be used for the purpose of conducting a lottery.”
“The magistrate failed to make a forfeiture order, as required by statute and he also failed to demonstrate on what evidence he was satisfied of the connection of the money to the offence.”
Magistrate Derence Rolle-Davis had 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 Magistrates 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 was not at the premises when the raid occurred nor was there direct evidence linking the funds seized to him.
He retained Sir Richard Cheltenham, QC, Alfred Sears, QC, and Charles McQuay to argue his appeal.
Franklyn Williams and Ambrose Armbrister appeared as the Crown respondents.