Archive for October 18th, 2013
Murder suspect released in Hart case
(CNS): Police have already let go one of two men arrested in connection with the murder of Earl Hart, an RCIPS spokesperson revealed Friday. The-31-year old man, who was arrested early Wednesday in a targetted police operation, has been released from custody but a 21-year-old is still being questioned in relation to the murder, which took place at Hart's home in Prospect on 3 October. Hart was the second man shot and killed in a spate of gun violence, in which three men were murdered in under one month.
Worker injured on Shetty Hospital site
(CNS): A construction worker is being treated in hospital after an industrial accident on the site of the Dr Shetty hospital in East End. Police have confirmed that at around 10:35 this morning, Friday 18 0ctober, 911 received a report thatone of the workers at the construction site had been injured. The man sustained a serious injury to his right ankle whilst working alongside heavy equipment. Police and EMS attended the scene and the man was transported to the Cayman Islands Hospital, George Town. Officers from the Department of Labour also attended but the details of the incident were not revealed by officials. However, other sources have indicated that the young worker's foot was severed by a forklift.
Tax information exchange agreements
My attention has been drawn to two very important news items, one in the issue of the Cayman News Service dated the 9th October 2013 headed "ATO (Australia Tax Office) ignores Cayman Court", and the other one in the Compass News Paper of Friday the 11th October 2013 headed "Australia defies Cayman court ruling".
Both news media should be congratulated on the speed with which they have brought to the attention of the public in two well written and factually correct articles the facts surrounding this unfortunate and disturbing matter. These two articles should be read very carefully by the general public, the Government of the Cayman Islands and our Legal Department and immediate steps should be taken by the appropriate authorities to prevent the action that has been taken by the Australian court from ever happening again either by that Court or any other court.
The Australian Court has acted in relation to a judgment of our Cayman Court in a very important matter in a manner that I do not think our Cayman Court would have acted in relation to a judgment of an Australian Court. In acting as it did the Australian Court has disregarded the well known principle Of International Judicial Comity, which is that courtesy and recognition of the judgment of one foreign Court is usually extended to such judgment by another foreign Court. This is especially to be observed when the two courts belong to states which both have Her Majesty the Queen as their Head.
In relation to the principle of International Judicial Comity Australia should remind itself of the classic approachto this principle by Lord Denning in Rio Tinto Inc. Corporation v Westinghouse Electric Corporation 1978 A.C at page 560 where he said, "It is the duty and pleasure of the English Court to do all it can to assist the foreign Court just as the English Court would expect the foreign court to help in like circumstances."
Our courts over the years have frequently acted in compliance with this dictum of this great English Judge and Jurist and I am disappointed to observe that an Australian Court has chosen to disregard it in this matter.
The Australian Court has instead chosen to disregard and defy a judgment of a Judge of our Cayman Court in which he held that four requests for documents and information made to our Cayman Islands Tax Information Authority (the CITIA) by the Australian Tax Office (ATO) and granted by our CITIA were wrongly and illegally granted and that the documents sent to the ATO pursuant to those requests ought never to have been sent, should not therefore be used and should be returned to the CITIA or destroyed.
The Australian Court has permitted the ATO to disregard the request of the CITIA either to return the documents sent to them or to destroy them and have permitted and sanctioned their use as evidence in Australian proceedings despite the Judgment of our Cayman Court and even before the judgment of our Court by Quin J. has been adjudicated upon by our Court of Appeal in which Court I understand that an appeal by the CITIA against the judgment of Quin J is pending. This is an especially troubling ruling by the Australian Court for the Cayman Islands.
The Cayman Court in its judgment came to the conclusion that the CITIA had acted wrongly, illegally and in breach of the provisions of the agreement and the law governing the agreement and granted to the Applicant Companies all the relief that they claimed against the CITIA.
It is this important judgment of our Court that has been disregarded and defied by a judgment of the Australian Court and pursuant to which the ATO has refused to comply with the requests made to it in the letter written to it by the CITIA following the judgment of the Grand Court in the Judicial Review proceedings.
I think that in the circumstances that have arisen the first step to be taken is for both our Government and Her Majesty's Government to strongly protest to the Australian Government about the refusal of its Court to extend the usual International Judicial Comity to the Cayman Islands judgment and about the fact that its Court has decided to disregard and defy the Judgment of our Court whilst it is still binding and has not yet been adjudicated upon by our Appeal Court.
I will make some other suggestions which might serve to prevent a similar situation from arising in the future but it is important to realize that if nothing is done the confidence of persons who do and wish to business here will be seriously affected and they will no longer regard the Cayman Islands as a place where they can expect to see the judgments of Cayman Courts followed and respected by foreign Courts and also where they can expect to receive fair and equitable treatment from bodies like the CITIA according to the rule of Law.
In this matter it is clear from Quin J's judgment that it was the unlawful decisions made by the CITIA and its failure to follow clear and specific provisions in the Tax agreement and the TIA Law that has given rise to the situation whereby the ATO has received and is in possession of Documents which was produced for it by the illegal and wrongful actions of the CITIA and which has enabled the ATO and the Australian Court to say that despite the fact that this is material that was obtained illegally and in breach of Cayman Law they are entitled to use it and to disregard and defy the judgment of our Court to the contrary and which must be regarded as a binding judgment until it is reversed by our Court of Appeal.
However the effect of Quin J's judgment as it stands, and until it is reversed either partially or entirely by the Court of Appeal, is that the CITIA is responsible for creating the embarrassing and possibly very costly position in which Cayman now finds itself.
My other recommendations:
I respectfully suggest that provisions be inserted into the TIA Law by way of amendment thereto to require the CITIA before it supplies any information or documentation or gives its consent to any use of Documents which it proposes to supply in response to a request, to make an application to a Judge of the Grand Court to sanction and approve the action that it proposes to take to the requests that have been made to it by the requesting party
This will enable the Court to consider and sanction and approve all the steps that the CITIA has taken in relation to a request and to verify that the CITIA has properly complied with the Law and the provisions of the Tax agreement in respect of which the application to the Court is made.
Judicial supervision of the CITIA is both desirable and needed. Such a procedural step will I am sure be welcomed by the persons who do or intend to do business here and will restore and enhance their confidence in the Cayman Islands. It should also be a step that would be welcomed by the CITIA.
I do urge our authorities to take steps along the lines of the suggestions that I have made in this letter.
I certainly think that the public would like to know :-
How many requests for information have the CITIA received?
How many of such requests has the CITIA responded to by supplying information and documentation?
How many times has the CITIA applied to the Court for directions under the provisions of section 21(2) which deals with the restriction on the use of information and provides that before consent is given for the use thereof that he CITIA should apply to a Judge for directions ?
Is it the practice of the CITIA to serve section 17 (1) notices on persons or entities who are the subjects of a request or requests as required by the provisions of this section? ? If yes how many such notices have been served by the CITIA?
Has the CITIA ever refused a request? and if so on how many occasions?
The CITIA is a body entrusted with very important functions and also to make very important decisions after following the provisions of the Law and the Tax Agreement and it is my hope that it will provide answers to the above questions.
Hunt still on for lost man wanted by cops
(CNS): Chief Superintendent Kurt Walton has confirmed that officers are continuing the search for Anthony Smith (33) from West Bay, who has been missing since 1 October when he jumped into stormy seas to avoid the police. However, Walton said that there had been no reported sightings of Smith and he has not contacted any of his friends or family who are in contact with the police. Although Smith was wanted by police regarding their investigations and in connection with his failure to appear in court, the greater concern is that Smith was lost at sea after he ran from officers and dived into the ocean at West Bay public beach at around 9:50pm that night in very rough conditions.
A search was begun immediately afterwards, with the assistance of the police helicopter and officers searching the shoreline in West Bay in the area where Smith went missing, but there was no sign of the West Bay man. The police continued with a sea and shore search throughout the following week but Smith has not been sighted nor has he made contacted with any of his friends or family that have contacted the police.
Smith was approached by officers on the night of 1 October as he sat in a stationary car close to Alfresco Restaurant. They asked him to step out of the car but as he did so Smith ran from the officers and dived into the rough seas. The strong tide started pulling him towards the West Bay dock, so officers immediately called for assistance and the air operations unit was deployed. A cell phone and shoes were recovered from the shoreline but the search was suspended due to the severe weather conditions. It was resumed around 7:30am Wednesday and has continued since, but there is no sign of Smith.
It is still not clear if Smith managed to get out of the water and evade the officers and has chosen to remain in hiding to avoid detention or if the man has been lost at sea.
Smith is described as 5ft. 10 inches, large built, light complexion, wavy hair, usually in plaits. If anyone has seen Smith since 9:50pm 1 October, they should contact their nearest police station. Alternatively people can call 526-0670 or 949-7777 or 800 TIPS in confidence if they know Smith is alive.
MLAs expose CS bosses
(CNS): The independent member for North Side, Ezzard Miller, was instrumental in exposing serious irregularities at the ICTA on Thursday when he probed for answers concerning the recruitment process at the authority which manages licences for TV, radio, Internet and phone services. In the Finance Committee hot seat David Archbold, the director, denied that the authority had advertised two posts in the local press despite having already sent contracts to candidates overseas before the date for applications had been closed. However, dispatched back to his office yesterday evening by the committee to fetch the relevant documents, the accusation was found to be the case.
In a long day of questioning, when the marginalisation of Caymanians in the civil service was front and centre of the proceedings, Miller, East End independent member Arden McLean, Opposition Leader McKeeva Bush and both of his West Bay UDP colleagues, Bernie Bush and Capt Eugene Ebanks, as well as some of government’s own members were clearly outraged at what appeared to be the manipulation of the process of recruitment at the ICTA and other government departments, in particular Lands and Survey.
Concerned about how foreign workers seemed to have been pre-selected and then the recruitment process manipulated, the MLAs began demanding accountability. Questions were asked over the introduction of specific qualifications for jobs that were previously not required in order to suit preselected ex-patriate candidates and push out Caymanians already in the departments. As the budget line items in Kurt Tibbetts’ planning ministry were put under the microscope, Marco Archer, who as minister of finance was chairing the proceedings, made slow progress.
Issue after issue was raised that appeared to point the finger at incompetence, ineptitude, irregularities and improper processes in government departments and in government companies and statutory authorities.
Following major concerns about the appointment of a new registrar at Lands and Survey after the long standing post holder, Aliceann Kirchman, retired, the MLAs placed the chief officer and the deputy governor under the spot light. The members demanded evidence of policy changes and the recruitment process. It appeared that the additional requirement of a law degree among other manipulations to the post had preventing experienced Caymanians from filling the previous registrar’s shoes and tailored the job for a specific person from Jamaica.
Following the exposure later in the evening of more questionable recruitment practices at the ICTA, Miller demanded that for once the people responsible for what was described by his colleague from East End as “skulduggery” were held accountable. While the two independent members were the ones responsible for probing almost every item in the ministry appropriations, other MLAs were equally shocked by what was exposed and new MLAs, such as Winston Connolly, appeared dumfounded by what was happening.
Several politicians pointed out that while government was holding the private sector to the fire about ending the manipulation of recruitment and immigration processes to select candidates from overseas and ignoring Caymanian applicants, they found the civil service management and authorities were engaged in the same behaviour.
While there was some harmony among the opposition benches during the long day of scrutiny, McLean and Bush also found time to clash over the issue of Dart’s community parks and who was responsible for maintaining them. And Miller emphasised for the record his desire for the government to ensure that the developer came nowhere near the park in his constituency.
Finance Committee was expected to continue Friday morning with the police commissioner, one of the public sector figures to face the committee. Given the pressure MLAs are now placing on all civil service managers to account for the tax payers money they are spending, David Baines is likely to find the seat particularly hot.
See details below or click here for the CS response over the recruitment of the Lands and Survey registrar.
Cops chase down burglar carrying TV set
(CNS): Police caught a burglary suspect red handed on Thursday afternoon when they chased him along the West Bay Road while he was carrying a television set and other stolen property. The 31-year-old man is now in police custody following his arrest at around 1:15pm Thursday, when police received a report of a man exiting Cayman Sands Village, West Bay Road, in possession of the television and other suspected stolen goods. The police immediately attended the scene, a spokesperson for the RCIPS said, and officers caught sight of the suspect running from the location. The police gave chase on foot and arrested him on a nearby property on suspicion of burglary.
84-year-old visitor critical after snorkelling trip
(CNS): An 84-year-old man who was visiting Grand Cayman on a cruise ship Thursday is in the Cayman Islands Hospital’s critical care unit after he lost consciousness while snorkelling near the Paradise Restaurant in George Town harbour. As a result of quick action by his family and the arrival of police officers, he received immediate attention. At about 10:40am Thursday the man, who was with his family and friends, he appeared to get into difficulty and lost consciousness in the water. He was brought quickly to shore by his family, where police officers immediately attended the location and administered CPR until the arrival of the paramedics.