$130k theft case thrown out

| 14/08/2014

(CNS): A Grand Court judge has thrown a white collar theft case out of court as a result of the failure of investigators to conduct a thorough investigation and obtain any evidence. Justice Charles Quin agreed with a defence application to throw out allegations against Fernando Mendes that he had stolen over $132,000 from his former employers, FINAB Ltd because late disclosure in the case pointed to his innocence and what appeared to be a false allegation made by his ex-bosses. Slamming the Financial Crimes Unit's investigation and raising concerns about his accusers, the judge pointed out that Mendes could have suffered a serious miscarriage of justice were it not for the late intervention of crown counsel in the case, who realized vital evidence was missing and began to find it.

In the immediate wake of his arrest, following the allegations made against him by the CEO of FINAB, Alfonse Finocchario, and his dismissal from the firm, Mendes made counter allegations against his former employer and filed a suspicious activity report (SAR) regarding potential tax evasion activity. Mendes warned the police that documentation existed to support both his allegations over the potential tax abuse and to defend himself over the allegations of theft but the police were very slow to respond. This was all the more problematic as Mendes had reason to believe his ex-bosses were destroying evidence.

Mendes had been due to stand trial in June 2012 but as a result of disclosure problems from the very start and his lawyer's insistence on finding the evidence needed to clear his client, the trial was delayed. Fortunately, the realization by a member of the Office of the Director of Public Prosecutions (ODPP)  that it was clear evidence was missing and that the police had failed to try and recover it, pressure from the crown eventually led to evidence coming to light.

The material that was finally disclosed at the eleventh hour demonstrated Mendes was innocent of certain allegations as transactions the FINAB CEO claimed were fraudulent and amounted to theft by Mendes were shown to be legitimate, cleared transactions that had been accounted for with regards expense for conferences, paid dividends and other approved payments.

The judge noted in his ruling, “From an early point in the investigations the defendant and his attorneys alerted the Financial Crimes Unit to the importance and relevance of material held in the offices of FINAB including emails and other electronic data.”

Despite this, the relevant material was not provided to assist Mendes in his case and during the course of the police investigation it appears that Mendez’ former employers did not disclose relevant material to the police. At first the firm’s director denied their existence and it was not until July of this year, some three years after allegations were made against Mendes, that crucial evidence in emails and documents he had claimed would clear him came to light.

During the FCU enquiry the firm’s director was less than direct with the police about emails and documentation in existence which could have assisted in clearing Mendes very early on.

“The Court is less than impressed with Alfonse Finocchario’s delay in assisting police and the contradicting statements that he made regarding which emails he has or does not have in his possession,” Justice Quin observed.

Pointing out that he is an experienced banker who made serious allegations against Mendez, the judge said Finocchario had a duty to provide the police with full and frank disclosure of all the relevant documents relating to his allegations.

When the defence finally began to see the emails it was quite clear that some of the money Mendez had been accused of stealing had been accounted for, examples that caused the court "great concern” the judge stated in his ruling last week. He pointed out this evidence raised the question of what other documents which have not been disclosed would show the defendant was innocent of the charges against him.

Justice Quin said that had the defendant’s trial, originally set for 5 June 2012, gone ahead he could have been convicted of charges relating to certain sums of money when undisclosed documents existed to demonstrate he was not guilty. “This would have led to a very serious miscarriage of justice for which FINAB and AF would have had to bear significant responsibility,” he said.

The judge also believed there are more documents relating in the case that have never been disclosed by Mendes’ former employers. “The court is very disturbed by the extremely late and incomplete disclosure of electronic data from FINAB,” Justice Quin stated, describing the disclosure from the firm as “entirely flawed”.

Justice Quin also made it clear he had serious concerns about the FCU’s conduct and what he said was the “apparent lack of support that the RCIPS has given to the DPP” in the case.

“This is a concern that I have expressed on previous occasions,” the judge stated in his ruling. “It is imperative that Senior Investigating Officers liaise closely with the crown counsel to ensure that discovery/disclosure is carefully examined and to ensure that it is as full and complete as possible.

“In this caseit was the duty of the RCIPS to carry out an open minded and independent investigation to discover whether AF’s allegations against the defendant were true or untrue,” he said, adding that the police are also responsible for collecting and preserving relevant material that may undermine a case against an accused as well as support it.

The judge said that while Mendes’ laptop and hard drive were seized at the time of his arrest no emails were ever recovered from it and the police had said they were unable to read the relevant files or extract the data as it was too difficult.

The judge said it should “have been obvious”to the Financial Crimes Unit that vital material was missing and the police needed to conduct a proper investigation. But, he said, there was "no evidence that anyone within the FCU focused their attention in this important lack of disclosure of the FINAB data”.

Justice Quin said that it was not until Michael Snape from the ODPP began to review the case and later, Toyin Salako, that prosecutors realized important evidence was missing and began to put pressure on the complainants to provide the relevant material.

As a result late in the day it became quite apparent that at least some of the allegations made against the defendant were false, calling the entire case into question given that much more material could very well exist that would clear him of the rest of the allegations.

The judge said both the police and FINAB had a duty to collect and retain all the relevant material to support the allegations being made but from the start the police failed to seize the relevant documents. The judge said the police failed to pursue all lines of enquiry and failed to collect the material which existed that undermined the accusations.

“This failure has led to a serious prejudice which, in my view, renders it impossible for the defendant to have a fair trial, particularly some five years after the time the offences are alleged to have been committed and three and a half years after his arrest,” the judge said.

”Consequently there has been a serious fault as to render it unfair to try the defendant for the offence on this indictment,” he added as he threw out the case.

The judge made no comment about the counter allegations made by Mendes and whether or not the FCU had pursued that line of enquiry. CNS has contacted the FCU regarding the case and is awaiting a response.

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Category: Crime

Comments (33)

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  1. Anonymousand says:

    It’s much more than that, Walker! The plan is also for licence plate readers, which can track where any/every car is/was at any given time!
    What that does to civil liberty, freedom and human rights?
    Hmmm…

    And to think Eric Bush wants..
    Submitted by Walker (not verified) on Thu, 14/08/2014 – 19:29.
    And to think Eric Bush wants to now put in speed cameras at our expense! What’s the point then to have cops if technology is being implemented?

  2. Anonymous says:

    Alfonso Finocchiaro is CEO and Shareholder of Finab along with a Bank called Banif. Alfonso Finocchiaro is an American citizen and resident.

  3. Anonymous says:

    Respect also to the defendant's legal counsel Ben Tonner (Samson & McGrath) for fighting his client's corner and exposing this injustice.

  4. Sucka Punch says:

    Saw a simlar situation involving a local person an a expatriate boss and company person went to jail serious criminality of boss and company was not even mentioned person sent to jail was threatened by lawyers to keep their mouth shut about it too. How lucky for some????

  5. Anonyanmous says:

    Government need to get Cayman off that FCA list of High Risk Country for financial crimes. Cayman has done every thing that regulators asked to be compliant yet we are on such a list this is very unfair, it seems that some entity is jealous of this island and is trying its best to put us out of business.  We need to bring a class action suit against the publisher of this list.

  6. Anonymous says:

    What the RCIPS needs to do first of all is this- instead of protecting and promoting the Brits and covering up there mess and theflip side is this, raking the local police over the coals for minor things try and form some espre de corp amongst all the officers and live as one and in inity (unity) treat all persons the seem across the board regardless of color creed or race they are.  And then you will have officers more willing to do the job they are actually being paid to do.  Second of all get rid of the operation tempura officers some of whom came here as retired uk police men but working with a private consulting firm in the uk BGP and were hired and given the ranks of Inspector or DI Inspector or Chief Inspector or DCI and even as DCP next in command. They don't even know how to speak to people much less solve any crimes!  Top Cop cleared of any wrong doing when he used a trailblazer to run a man down run over him and left him pinned for more than 2hours, another Uk Police man ran over a young man in west bay and also then reversed over him causing many broken bones what happened with that?! 

    A lot of the local Police officers are willing to work but the mounting pressure on them from the Brits are unreal.  That's why this crap is happening within the RCIPS

    • anonymous says:

      From your post, it sounds like it is only the UK officers doing anything and you want to get rid of them?

  7. marius voiculescu says:

    Obviously this case had some serious deficiencies from the very beginning.  Unfortunately we are not privy as to who began its prosecution.  Based on past experiences it probably got tossed around the ODPP and landed on someone's desk who regardless of its merit felt that it's okay to go ahead with it.  Aside from justice Quin this defendant's saving grace appears to have been the two prosecutors, Michael Snape and Toyin Salako.  Unlike others who I'm personally familiar with at the ODPP, these two prosecutors had (a) common sense (b) the integrity to do the right thing (c) the decency to do the right thing.  Perhaps one ought to consider them for higher positions…There are two positions that I can think of occupied by two who have done nothing but collect fat paycheques for years on end…

  8. Anonymous says:

    DON’T YOU ALL UNDERSTAND WHO SOME OF THESE GREAT INVESTIGATORS ARE?

    They are some of the same ones who f**ked up operation tempura. If we don’t rid our Islands of Baines we are lost at sea.

    How can the blind lead the blind. Now whilstbi have said what I did the office of the DPP is not with out fault had they did there job this key evidence would have been sorted prior to a ruling ant subsequent charges being filed.

    On a serious note, some heads need to roll in this case.

  9. Walker says:

    And to think Eric Bush wants to now put in speed cameras at our expense! What's the point then to have cops if technology is being implemented?

  10. Anonymous says:

    All the above actions and  more is astonishing, and for years now we can truly see the Police Force has its line of corruption and until this entire departments is overhauled and cleanse Cayman will not be any better, the more that the join the force the more corruption and the more absolute lack of concern for the victims of this country.  Thank you Judge Quin for airing their slackness and unprofessional manner in which they treat the taxpayers who are working under extreme circumstanes in order for them to take a salary at home each month. Plus many of them have their own businesses "on the side". At the Bodden Town district meeting last week a resident was saying how a certain police officer drive around in our government cars to construction sites giving our his business cards and requesting that when thetop is being erected to call his number. The time they should have offered a helping hand to clear Mr. Fernando Mendes who were being persecuted by his bosses, they are advertising their side businesses.  We are all victims being treated as criminals, the crime sprees are running smoothly in Cayman, why? the Police pay little or no attention to the bad guys. Once the Police take a few words in a statement the incident is done, they never return to say what is the follow up on the crime, over the months and years you the victim are left hanging in the air and wonder if you were wrong in reporting the incident. When will it all end, when will something be done?

  11. SickAndTiredOfTheLackOfControl says:

    Again?  Oh my goodness!  When will our government representatives put a stop to this madness?  The RCIPS seems to be nothing but corruption and misrepresentation.  COME ON GOVERNMENT these are your employees!  Do something about this entire mess before they completely ruin more than one innocent person's life!

  12. Anonymous says:

    Anyone know who owns Finab and who the Caymanian partners are? There's nothing on their website.

  13. Anonymous says:

    RCIPS need to think about perhaps having fewer but better paid FCU officers, maybe dranw from the big 4 accounting firms who acutally know where to look to find evidence and can forensically put things together-maybe these farces would not happen then..it makes the whole system look stupid and ruins people lives uneccesarily.

  14. Anonymous says:

    Now in a normal situation this black eye would lead to a drastic shake up and reexamination of the entire Financial Crime Unit and the DPP but will this happen?

    Wait and see.

  15. Anonymous says:

    Sadly this looks like just another in a long list of retaliatory/malicious criminal complaints made by local employers to settle employee issues. Every this happens RCIPS back the employer – I wonder why that is?   

  16. Anonymous says:

    Thank God this innocent man was able to find the help he needed.  But who is to say some other crime wasn't committed and this man used as a scapegoat?  Is there anyone at DPP or FCU qualified to investigate such a complex matter?

  17. Anonymous says:

    Time to fire all those responsible for this latest RCIPS and DPP train wreck. No doubt this will result in another law suit against the people of the Cayman Islands.

  18. Anonymous says:

    OK Deputy Governor, now the RCIPS deserves your Civil Service Award!

  19. Anonymous says:

    Blessings on you Judge Quin. What people fail to realise is that Judge Quin is not only a good Judge, but a great lawyer. He is also an astute business/company manager.  He covers all bases.  He is also a great human being!!

    • Ironside says:

      Hear! Hear! An outstanding summation, Judge Quin. Thank you for all you do to preserve justice and be fair to those who are accused, those who turn out to be innocent (as is the case here) and of course those found guilty beyond a doubt.

  20. Anonymous says:

    Another stunning success for Cayman's law enforcement agencies and the DPP!

    Expect a round of promotions and self congratulation.