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| DPP Paula Llewellyn CD, KC |
Reasons
for No Further Evidence being offered against WISYNCO LTD by the Office of the
Director of Public Prosecutions (ODPP) in the prosecution of the matter for a breach
of Section 11 of the Wild Life Protection Act.
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Allegations
1.
On the 18th day of July 2023, the National
Environmental and Planning Agency (NEPA) received information that there was a
pipeline leakage into the Rio Cobre River in the parish of St. Catherine in the
vicinity of Dyke Road. The pipeline in question was owned by WISYNCO
Limited.
2.
Upon arrival at the site where the pipeline was
leaking, officers from NEPA observed that there was a pipeline that ran from
one side of the river to the other. The said pipeline was used to connect the
two (2) sides of the WISYNCO plant. The officers observed that fluid was
gushing from the pipeline into the river.
3.
A visit was then made to the WISYNCO plant where the
NEPA officer spoke to the Plant Manager. Upon arrival, it was discovered that
maintenance work was being carried out at the plant. The Plant Manager was then
told of the break in the pipeline. He made a call and indicated that the pumps
would be turned off. The said officer, as outlined in her statement on file,
formed the opinion that the pipeline was recently commissioned and that WISYNCO
“was not aware” that there was a break in the pipeline.
4.
A visit was made approximately two (2) kilometres down
the river where dead fish were seen on the bank of the river. The NEPA officer
who had made the observation further indicated in her statement that “the
position of the dead fish did not look organic and that they were concentrated
in one small section along the river.” Clarification sought from the NEPA
officer by the prosecutor revealed that the fish appeared to have been stacked
on the bank of the river.
5.
NEPA then charged WISYNCO for breaching Section 11 of
the Wildlife Protection Act.
6.
Section 11 of the Wildlife Protection Act states:
“Notwithstanding anything to the contrary every person who causes or
knowingly permits to flow or puts or knowingly permits to be put, whether
directly or indirectly into any harbour, river, stream, canal, lagoon or
estuary, containing fish, any trade effluent or industrial waste or sewage or noxious or polluting matter shall
be guilty of an offence against this section and shall, upon conviction before
a Parish Judge, be liable to a fine not exceeding one hundred thousand dollars
or to imprisonment for a term not exceeding two years or both such fine and
imprisonment.” The trial1.
On the 8th day of October 2024, the trial of
the matter commenced in the St. Catherine
Parish Court and was being prosecuted
by NEPA pursuant to a general fiat
which had
been granted by the Director of
Public Prosecutions allowing NEPA to actively associate with the prosecution of
the matter. On the 23rd day of January 2025, ODPP commenced a review
exercise of all the cases that NEPA had a general fiat to actively associate
with the prosecution. Following the review of the Trade Winds matter, the
Director of Public Prosecutions revoked the general fiat previously granted to NEPA and assigned an Assistant Director
of Public Prosecutions and two Crown Counsel to take over the handling of the
seven (7) cases of alleged environmental breaches that NEPA had in its case
stock.
Outcome of the review by the ODPP
8.
Having reviewed the statements on file and sought
clarity from the NEPA staff, the ODPP observed the following:
a.
No samples of water were taken by NEPA from the river
beneath where the fluid was seen gushing into the river for testing to be done
to determine whether it fell within the definition of trade effluent,
industrial waste, sewage, noxious or polluting matter;
b.
No sample was taken by NEPA from the source of the
pipeline attached to WISYNCO that was seen from the break in the pipe that was
discharging fluids into the river for testing to be done to determine whether
it fell within the definition of trade effluent, industrial waste, sewage,
noxious or polluting matter;
c.
The substance that flowed through the pipe was never
scientifically identified, as a matter of law, as a substance capable of
falling within the definition of trade effluent, industrial waste, sewage,
noxious or polluting matter, and therefore
the prosecution was not in any position to evidentially prove what its
character and nature was.
d.
On the prosecution’s case, the NEPA officer in her
statement indicated that she formed the view that WISYNCO was not aware that
the pipe was leaking fluids into the river;
e.
The dead fish that were seen were not observed in the
waters of the Rio Cobre, but were instead stacked along the embankment of the
river. No testing of the fish was done to determine what had caused the death
of the fish; and
f.
There was no testing of the water two (2) kilometres
downstream to ascertain if there was any pollutant present in that vicinity of
the water and if so, what that pollutant was. In fact, there was no testing of
the potentially affected area of the Rio Cobre in relation to the investigation
of this matter.
9.
In light of the observations mentioned above and the
legal ingredients of the offence that have to be proved, bearing in mind the
burden of proof that rests on the prosecution, and the standard of proof, which
is beyond a reasonable doubt, the
ODPP conducted an evidential analysis to ascertain whether there was in fact a
viable prosecution going forward.
10. Section
11 of the Act requires the prosecution to prove that the substance discharged
into the river by the Defendant company was either: a. Trade effluent; or
b.
Industrial waste; or
c.
Sewage; or
d.
Noxious; or
e.
Polluting matter.
8.
To prove any of the above, the prosecution would have
to adduce evidence that the matter being discharged into the river is of a
certain class or nature that falls within the abovementioned descriptions. In
this case, there was nothing on the file speaking to what was in fact coming
from the broken pipe which was attached to WISYNCO and going into the river. In
prove of the case, one cannot use speculation, assumption or suspicion to
ground what the pollutant was.
9.
Further, there was evidence on the prosecution’s case
that WISYNCO is not the only company that operates along the Rio Cobre River
and therefore, in order for the Defendant (Company) to be properly identified
as the source of what went into the river, there would have to be a nexus
between the suspected pollutant found in the water and the source from which
that suspected pollutant came. Without the nexus and without the identification
of the substance in the pipeline that was going into the water, the prosecution
would have been unable to show the Court to the requisite standard of proof
that it was the Defendant who in fact polluted the river.
10. Without
the required evidence to create a nexus between the discharge from the pipeline
and the source of said discharge, the prosecution would not be a viable one and
therefore, in the interests of justice, the matter would have to be
discontinued by the offering of no further evidence.
11. In
light of the fact that the incident in relation to this matter occurred on the
18th of July 2023 and the subject matter pipeline appeared to be
repaired further investigation to assist the prosecution would be pointless and
would be deemed to be unfair to the accused at this stage.
In Court Today
15. On
the 23rd day of June 2025, the prosecution led by Mr. Dwayne Green,
Assistant Director of Public Prosecutions, and Mr. Kemar Setal, Crown Counsel,
outlined to the Court the reasons stated above and that having consulted with
the Director of Public Prosecution, the Crown was obliged to offer no further
evidence, as a matter of law. In the well-known case of R. v. Barry Randall (Cayman
Islands) [2002] UKPC 19, the
Privy Council reiterates the critical principle that there is an overriding objective
in any criminal trial of fairness to the accused. This means that even
though one can understand the disappointment or other negative emotions which
segments of the society may feel because of the result, ethically a prosecutor
is obliged to be objective, fearless but fair and to be guided by the law by
offering no further evidence in circumstances where there is insufficient
evidence to mount a viable prosecution.
16. Since
the revocation of the general fiat by
me in early May, there have been several training, collaborative and
consultative sessions between the ODPP and NEPA which will continue to improve
the investigative and prosecutorial capabilities of the staff at NEPA in their
handling of the investigation of environmental breaches.
17. The
Defendant was represented by Ms. Stephanie Eubank and Ronaldo Richards,
Attorneysat-Law instructed by Myers, Fletcher and Gordon.
Paula
V. Llewellyn, K.C
Director
of Public Prosecutions
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