Vincent Nelson loses conviction, sentencing appeal

CONVICTED King’s Counsel Vincent Nelson has failed in his attempt to appeal his conviction and sentence for conspiring to commit money laundering, misbehaviour in public office and conspiracy to commit an act of corruption relating to a legal-fee kickback conspiracy.

A notice of appeal was filed on October 31, 2023, five years and five months after he was convicted. He had 14 days in which to appeal his conviction.

On July 17, Justice of Appeal Mark Mohammed dismissed Nelson’s application. He now intends to appeal to a full panel of three judges.

Nelson’s application for an extension of time to file his appeal was premised on events leading up to a plea agreement with the Director of Public Prosecutions (DPP). These events, the appeal alleged, were an abuse of power and a breach of a promise not to prosecute.

In May 2019, Nelson, a tax attorney who lives in the UK, was indicted on three charges. Nelson entered a plea deal with the Office of the DPP, which included an agreement that he would testify against former attorney general Anand Ramlogan, SC, and ex-UNC senator Gerald Ramdeen.

Nelson was convicted on June 4, 2019, sentenced on March 2, 2020, and ordered to pay $2.25 million in fines, which he also wants the State to pay.

In October 2022, DPP Roger Gaspard made the shocking announcement of the decision to discontinue the case against Ramlogan and Ramdeen because Nelson refused to testify against them until his civil claim for $95 million in compensation for the alleged breach of the indemnity agreement was determined.

In March 2023, Nelson’s attorneys wrote to Gaspard asking him to appeal his conviction and sentence but the DPP refused, saying he believed the grounds set out by Nelson were not justified or factually well founded.

Nelson’s application had set out the events leading to the indemnity deal he entered with then attorney general Faris Al-Rawi and the Government. He alleged ten promises were made to him.

In his ruling, Mohammed said Nelson’s account was “in some ways nebulous, speculative, and partly based on hearsay statements. “

He added, “Standing against this is the uncontroverted fact of the plea agreement and the appended statements of the applicant and his then attorney-at-law and the guilty plea during which the applicant voluntarily stated that his guilty plea was a voluntary one and that no promises, agreements, undertakings, or inducements had been made to him and that no one had threatened or forced him to enter into the plea agreement.”

Mohammed also maintained that Nelson’s assertions were “now violently inconsistent” with the terms of his plea agreement. He also pointed to statements made by Nelson’s trial attorney, Tom Allen, KC, who explained to then-High Court judge Malcolm Holdip that his client freely made a statement (to the police) inculpating himself and others.

Nelson has not recanted, a point also raised by the DPP in resisting the application.

Mohammed was also critical of the former AG in his ruling.

“The actions of Mr Al-Rawi could potentially be described as having been high-handed and, perhaps, left much to be desired.

“However, in the present scenario, those actions do not rise to the level of creating, in this court’s mind, the impression that there are good prospects of success in this appeal.”

He also added, “...It is clear on the applicant’s own evidence that had it not been for his own actions, this entire chain of events would not have unfurled.

“Moreover, any expectation(s) that might have been engendered in the mind of the applicant based upon the alleged ten specific promises and the various acts and manoeuvrings attributed to Mr Al-Rawi would all have been superseded when the Director was introduced into the process.

“At that point, the Director became the sole State functionary charged with the responsibility of deciding whether or not to bring a charge against the applicant in the public interest, and thereafter, was also responsible for all matters pertaining to the plea discussions and plea agreement.

“At the point when plea discussions were entered into between the Director and the applicant, it would have been starkly obvious to the applicant that the Director had not accepted any recommendation made to him that he ought not to have been charged, as had been embodied in one of the terms of the indemnity agreement.

“Notwithstanding this, the applicant voluntarily entered into extensive plea discussions and voluntarily entered into a plea agreement, stating that no inducements or promises were offered to him to do so.

“It is also noteworthy that since being charged with the conspiracies and becoming aware that he would not be granted immunity from prosecution, the applicant has neither recanted nor denied the truth of his confessions and/or statements made to the ACIB or in his notarised statements.”

Mohammed also said Nelson’s argument of Executive abuse had collapsed against the Plea Act.

“This collapse occurs for these reasons. First, both the Director and the Judiciary, at different intervals, are required to ensure that the plea is a truly voluntary one devoid of, among other things, inducements offered and promises made to an individual, such as the applicant, in order to enter into the plea agreement which thereafter culminates in a guilty plea.

“Second, whatever the conduct of Mr Al-Rawi, that did not absolve the applicant of the statutorily imposed obligations under the Plea Act to reveal to the sentencing judge the inducements and promises made.

“Insofar as the applicant failed to disclose those matters and was thus not forthright, it may be said that he was intentionally manipulative of the entire process of the plea discussions, and that is an anathema to plea discussions and to a plea agreement.

“Third, Mr Al-Rawi’s actions and conduct does not contaminate the applicant’s plea agreement and infect the subsequent guilty plea, as the Director is an independent office holder in the Executive who is not bound by the promises of Mr Al-Rawi.

“Similarly, Mr Nelson also had the protection of an independent arm of the State, the Judiciary, whose principal function was to ensure that the guilty plea entered into was a ‘sanitary’ one.

“On the totality of the evidence, while allegations of abuse of process can potentially be levelled against Mr Al-Rawi, no such allegations can be made against the respondent herein, the Director.

“Thus, the Applicant has not persuaded this court that there are good prospects of success that there has been an abuse of process, which amounts to an affront to the public conscience and which requires the criminal proceedings to be stayed.”

On the issue of prejudice, Mohammed also said Nelson’s was outweighed by the DPP’s because of the public interest factor.

“It cannot lie in the bosom of an applicant to intentionally conceal relevant material within his knowledge prior to entry into the plea agreement and then seek to deploy it, subsequently, in order to void the conviction and ‘sentence.

“This would carry with it the deleterious potential of seriously undermining the efficacy of the Plea Act and would be potentially violative of legal certainty and the public interest in the finality of legal proceedings, the efficient utilisation of judicial resources, and good administration, all relevant factors to be weighed in the balance in an application such as this.”

He also added, “To allow the applicant to renege on his own voluntary guilty plea would be to undermine the raison d’être of that Act and to ignore the applicant’s admission ‘in open court that he committed the act charged in the indictment’.”

Nelson was represented by Edward Fitzgerald, KC, Naveen Maraj and Varun Debideen. The DPP was represented by Ian Benjamin, SC, Tekiyah Jorsling and Tonya Rowley.