Defence asks about forfeiture of imported materials
The Crown’s case against Midland Acres Ltd. and its director, Suresh Prasad, alleging the unauthorised importation of explosives was adjourned until Wednesday, 22 August, following preliminary discussions in Summary Court on Friday in Grand Cayman.
No trial has started and no pleas have been entered, but defence attorney Nicholas Dixey asked about the penalty section of the Explosives Law. When there is a conviction, the explosive shall be forfeited to the Crown “unless the court, for good reasons, otherwise directs.”
Mr. Dixey advised, “Midland Acres wants to find out what is going to happen if the court [agrees with] the Crown … We’re asking the court for a preliminary indication.”
Magistrate Valdis Foldats emphasised that discussions with Crown Counsel Candia James and Mr. Dixey were theoretical at this stage.
The company, Midland Acres, and Mr. Prasad personally are charged with the same four offences of unauthorised importation between 23-28 February 2012: 100 electric detonators and 2,500 non-electric detonators; 2,000 units of nitro-methane Kinepak Liquid all weighing a total of 480 pounds (net); an emulsion containing Ammonium Nitrate and Petroleum Distillates all weighing a total of 50,000 pounds (net); Ammonium Nitrate – Kinepax Solid all weighing a total of 1,734 pounds (net).
The Explosives Law makes it an offence to import any explosives without written authorisation of the managing director of the National Roads Authority.
Mr. Dixey said Midland Acres was concerned with getting the matter dealt with quickly. He repeated his concern of the previous day – that the matter was time sensitive because some of the materials in question have a limited shelf life of six months (Caymanian Compass, 17 August.)
“These are industrial items used every day,” Mr. Dixey argued. “The law is there to make sure everybody gets their paperwork in order.”
In this case, he summarised, “When the materials arrived, Customs said they had to get regularised with the National Roads Authority. After some time, the NRA decided to report the matter to the police.”
He said one had to wonder whether Midlands Acres and Mr. Prasad were “smaller players in a bigger game.”
He suggested there is precedent in the Summary Court for what is known as a Goodyear direction – so named after a United Kingdom case in which the defence asked the court to indicate what the maximum sentence would be if the defendant pleaded guilty.
The maximum sentence under the Explosives Law is a fine of $1,000 and imprisonment for six months and forfeiture of the explosive.
Mr. Dixey said there were good reasons for not forfeiting the materials: Midland Acres had been totally transparent and had cooperated with authorities, he said. There were economic problems that should also be considered, he maintained – not just for the company but for work with sub-contractors. “The court will appreciate there is a very real commercial liability hanging over us.”
The magistrate asked if either counsel were aware of any case law that would be of assistance with the question. “I’m not making decisions,” he said. “I’m just pointing to issues and wondering perhaps the forfeiture clause is to get rid of items that shouldn’t be here.” He observed that it seemed wasteful to destroy goods that could be used for commercial purposes.
Mr. Dixey at one point stated, “I would hope the court would have some sympathy.”
The magistrate replied, “It’s not a matter of sympathy. It’s what is the intent of the law.”
Ms James spoke to the intent of forfeiture: “I think we’re making it synonymous with destruction. The forfeited material would become the property of the Crown – in this case, the National Roads Authority, who would be free to use it.”
She also repeated her comments from the previous hearing – that an expert advising the Crown would submit his formal report on Tuesday as to whether the various items are explosives under the definition in the law. The defence also has its expert.
The magistrate said he thought Friday’s discussion had helped narrow the issues. On the basis that the Crown will have its expert report on Tuesday, he set the matter to continue on Wednesday at 2pm.