Witness against former AG wants DPP to overturn conviction
CONVICTED King’s Counsel Vincent Nelson wants Director of Public Prosecutions (DPP) Roger Gaspard, SC, to take steps to have his conviction and sentence set aside, “in the interest of justice."
To do this, he wants the DPP to use the power of his office to appeal his conviction. Nelson’s bold requests were made in a 36-page letter from his attorneys to the DPP on Wednesday.
In the letter, dated March 15, the Jamaican-born attorney says the DPP had a duty to disclose to the court the specific terms of the indemnity agreement between Nelson and the Government. Its disclosure by Gaspard, the attorneys said, would have “inevitably led to the plea agreement being rejected” by Justice Malcolm Holdip, in 2019, because of the promises made to Nelson by former attorney general Faris Al-Rawi for the Government, the letter said.
Nelson is relying on provisions of the Criminal Procedure (Plea Discussion and Plea Agreement) Act, in particular section 31(2), and the DPP’s powers under the Constitution to make his case.
In May 2019, Nelson, 62, a tax attorney who lives in the UK, was indicted on three charges of conspiring to commit money laundering, misbehaviour in public office and conspiracy to commit an act of corruption. The misbehaviour charge was discontinued after he entered a plea deal with the Office of the DPP. Justice Holdip sentenced him in March 2020 and ordered him to pay a total of $2.25 million in fines which he also wants the State to pay.
Those fines become due on April 30. Nelson was ordered by Holdip to pay the fine in monthly instalments over the course of a ten-months beginning at the end of April 2019, or face five years’ imprisonment.
Nelson is yet to pay any of those fines as the payment of all fines, except maintenance, was deferred several times because of the covid19 pandemic. If he fails to pay by April 30, once there is no further deferral, he will have to be extradited to TT to serve his default sentence. The filing of an appeal can put a temporary hold on the payment of the fines, but that will last only until and unless an application for an extension to file an appeal is granted. Then the appeal will have to be listed for hearing.
On October 10, 2022, the DPP announced he was stopping the case against Ramlogan and Ramdeen because Nelson was unwilling to testify until his civil claim against the State came to an end. The letter said Nelson had consistently said he will not give evidence until the government fulfilled its commitment under the indemnity agreement and provide the promised pardon – which was supposed to happen a month after he was sentenced in 2020.
Days before his decision, Gaspard told Newsday, the only discussion or agreement he had with Nelson was the plea deal that was in place.
He said he would not have been privy to any discussions which would have taken place before the criminal investigations were conducted.
Asked about the purported “indemnity document,” Gaspard referred Newsday to the Attorney General, saying he was not “privy to any discussions.”
“Those may relate to civil matters since the AG has no purview with criminal matters,” he said then.
Nelson's letter claimed the DPP’s position in the Ramlogan and Ramdeen came as a surprise to him (Nelson) since Gaspard would have known about the inducements since 2018/2019 and the payments to Nelson or his attorneys. It also said the excuse for discontinuing the case was “disingenuous and convenient."
Instead, the letter suggested that the real reason the DPP did not want to proceed with the case against the former politicians was because he had formed the view that the “inducements” to Nelson would have presented difficulties at Ramlogan and Ramdeen’s trial.
According to the letter, Nelson maintains the DPP had a duty to disclose details of the indemnity agreement as a minister of justice, because of his constitutional duty and under the prosecutor’s code of conduct by which he is bound.
“The process that led to Mr Nelson entering into the plea agreement was fundamentally unfair and oppressive…and was obtained by misrepresentations and/or threats and/or oppression on the part of the State.”
The letter said this should now be clear to the DPP if they were not before that Nelson was induced to enter into the plea agreement by the State for its benefit and that of the Executive.
“The DPP was aware at all material times of improper inducements made to Mr Nelson and failed to bring them to the attention of the sentencing judge.
“No reason has been advanced as to why these matters were not brought to the attention of the sentencing judge.”
His letter to the DPP also said the concealing of evidence went beyond the safety of a conviction and the acceptance of a plea agreement that formed the evidential foundation of “what might well have been a politically-motivated prosecution.”
It also said Nelson’s trial process in 2019 and 2020 was an abuse of the court’s process as it was based on evidence obtained because of the indemnity agreement.
“To advance a prosecution and rely upon evidence that was obtained as a result of what the State now asserts was an unlawful and illegal agreement must be an affront to the principles of fundamental justice.
“A just verdict cannot be secured by a process that is patently and inherently unjust.”
It also said even after his conviction and the discontinuance of the case against former AG Anand Ramlogan and ex-UNC senator Gerald Ramdeen, the “improper threats and inducements” have continued.
Ten days after the shock announcement by the DPP, Nelson's claims he was threatened that if he did not give evidence at a new trial for the two, the Government would involve the UK white-collar crime investigative agency, NCA, to prosecute him.
Apart from repeatedly asserting that promises were made to induce him to enter into the indemnity, Nelson maintains he relied on them although the State has now reneged. He says it would be unfair and a miscarriage of justice to allow his conviction to stand.
Nelson’s letter claimed the “process of charging and prosecuting Mr Nelson was achieved by the unlawful exercise of State power by servants and or agents of the State to achieve a political purpose.”
And, “The DPP was fully aware of these actions and did nothing to protect the process that was being used to prosecute,” him.
The DPP was given 21 days to respond, if not, steps will be taken to commence legal action to set aside Nelson’s conviction. The deadline is just over two weeks shy of when payment of the fine becomes due.
After Nelson’s sentencing, Al-Rawi, who was the attorney general at the time, told Newsday the sentencing was a "historic occasion" because of Nelson’s whistle-blowing testimony.
“"This case was a historic case in so far as Mr Nelson's whistle-blowing testimony, voluntarily given, resulted in his conviction and sentencing before a court."
"What is important in the Nelson matter is that all of the dots which were put together in the criminal justice reform went to work."
The grounds by which Nelson's attorneys say the DPP can appeal the conviction and sentence, and several case law to support the contention, were also provided in the lengthy letter written by King’s Counsel Edward Fitzgerald and Varun Debideen.
Civil case seeks $96m in compensation
In his lawsuit alleging a breach of the indemnity agreement, first filed in February and re-amended in June 2022, Nelson said he incurred costs and expenses associated with his notarised statement which he gave on October 26, 2017. The statement disclosed the alleged criminal conspiracy and criminal enterprise with Ramlogan and Ramdeen.
Nelson claims if not for his conviction – which he also claims was not part of his agreement with the Government – he would have returned to practise law for 10 years until his retirement in 2028 when he turned 71.
He is claiming the $96 million for these “lost years” of work. Nelson said he had no funds saved for a pension and it was always his intention to return to work as soon as he was cured of cancer. Nelson says before his conviction he earned an average annual salary of £1.4 million.
He also wants the State to pay the court-ordered fines.
But the State contends any income Nelson earned through his corrupt alleged agreement to pay kickbacks to Ramlogan, or could have earned since then, would be premised on his continued dishonest and corrupt failure to disclose that he had “corruptly agreed to pay the said kickback to Ramlogan.”
A counter-claim, filed along with a re-amended defence on November 7, 2022, alleges Nelson received the money as a result of “unlawful and unjust enrichment,” at the expense of the people of TT.
The government is going after every cent paid out to him. Nelson’s civil claim and the State’s counter-claim comes up for hearing in April before Justice Jacqueline Wilson who is expected to hear arguments for the unsealing of the matter.
Powers of DPP
Criminal Procedure (Plea Discussion and Plea Agreement) Act
Section 31 of the act sets out the procedure to set aide a plea agreement, conviction or sentence.
31. (2) The Director of Public Prosecutions may appeal to the Court of Appeal, with leave of the Court of Appeal or a judge thereof, against an accused person’s conviction or sentence pursuant to a plea agreement where – (a) the prosecutor, in the course of plea discussions, was wilfully misled by the accused person or his attorney-at-law in some material respect; (b) the prosecutor was induced to conclude the plea agreement by threats, force, bribery or any other means of intimidation or influence; or (c) there are any other grounds upon which the plea agreement may be set aside by the Court in the interest of justice.
"Witness against former AG wants DPP to overturn conviction"