Michael Prest who is a barrister, international banker, investor and entrepreneur was unsuccessful in his attempt to stay the execution of two (2) warrants issued by the Learned Magistrate for District C (Nevis). The Court of Appeal dismissed Mr. Prest’s application for a stay on 27th September 2022.
The refusal of the stay clears the way for Prest to be arrested and charged with the offences of fraudulent conversion and fraudulent conversion by a trustee contrary to sections 19(d) and 20 of the Larceny Act. Prest filed an application for judicial review on 27th August 2021 and was granted leave to pursue same. However, his claim for judicial review was eventually dismissed on 18th March 2022 by Justice Ermin Moise.
Prest appealed that decision and applied for a stay of the order to issue the two (2) warrants for his arrest pending the hearing and determination of his appeal. That application was stoutly resisted by then DPP Valston Graham who was represented by former Attorney General of Trinidad and Tobago Mr. Anand Ramlogan SC. Detailed and comprehensive written submissions were filed on behalf of both Prest and the DPP and the matter was heard and dismissed on the basis the written arguments.
Ramlogan SC argued that the State and the public interest would be severely prejudiced if a stay was granted because it would effectively frustrate the prosecution of bona fide criminal charges which were justified and valid in law. He submitted that the appeal had no prospect of success and that Justice Moise was correct to dismiss Prest’s claim for judicial review.
In dismissing the claim, Justice Moise had warned against Mr. Prest using the court “to embark on a fishing expedition to discover the prosecution’s evidence against him at this stage”. He said: [25] In the search warrant under review in that case, the warrant explicitly stated that the magistrate was satisfied that there were reasonable grounds upon which the warrant ought to have been granted. Although such a declaration was not made in the warrants under review in this case, it was stated that evidence was provided on oath and on the basis of that evidence the learned magistrate issued the warrants. What counsel for Mr. Prest now seeks to do is to place information regarding Corporal Diamond's investigation before the court and to argue that had this information been before the magistrate she would not or ought not to have made the decision she made as it would have proven that the charges were frivolous or vexatious and an abuse of process. There is however no evidence that all or even part of that evidence was not before the magistrate when she made her decision and I express serious doubt that a warrant should be placed in abeyance to allow a potential defendant to embark on a fishing expedition regarding the evidence which was before the magistrate when the very warrant was issued to ensure that he appears before the very court to answer to the charge. He is entitled to full disclosure of the evidence against him in the criminal proceedings.
On his website, Prest is described as: “a seasoned strategic investor with a strong track record of growing successful businesses across a range of industries and sectors in Africa, the Caribbean, Asia and Europe. He is often described as the consummate negotiator who presides over the Bank of Nevis International Limited (BONI) and Bank of Nevis International Trust Services Incorporated (BONITS). Both related companies are based on the island of Nevis in the Eastern Caribbean. Mr Prest, also maintains group interests in East Africa oil & gas exploration rights and which, given the energy transition window, will be developed to better serve the needs of regional consumers.”
He is currently looking at opportunities to roll out scalable solar energy initiatives in East Africa in the first instance and then the wider Africa; investing in better natural resource outcomes in the mining and minerals sector in Africa as well as a bespoke gaming and entertainment product as a means of raising the entertainment and gaming bar responsibly and with a view to protecting vulnerable consumers as well capturing the rich and sometimes complicated texture of the unique stories that abound across Africa and the Caribs and by so doing, positively change the narrative of Africa and the Caribs.
The evidence against Prest was detailed in the judgment as follows:
[51] The evidence presented by Corporal Diamond, as referred to by Ms. Hobson, was that Mr. Kutcher personally wired $2,530,000.00US from his own account in Canada to BMO for onward transmission to an account to be held in escrow by an attorney acting on behalf of Petrodel Investments Advisors Nevis Limited (PIAN). It is asserted that Mr. Prest is the sole shareholder, main beneficiary of and directing will and mind of PIAN. He had personally negotiated the contract upon which Mr. Kutcher was acting. It is further asserted that the funds were to have been held in escrow until such time as Mr. Kutcher had obtained regulatory approval for him to acquire a 49.9% shareholding in the Bank of Nevis International ltd. That was Corporal
Diamond's assertion.
[52] Corporal Diamond also asserted that at the direction of Mr. Prest, the funds were transferred from the attorney's escrow account into an account at the Bank of Nevis ltd. and subsequently used to purchase shares in the name of PIAN. It is further asserted that Mr. Prest is the sole shareholder of PIAN and therefore the main beneficiary of this transaction. Corporal Diamond further asserts that this transaction was not designed to ensure that Mr. Kutcher had acquired the shares, which was the main purpose for which the funds were to have been held in escrow, but to benefit Mr. Prest or his company in acquiring the shares through the use of Mr. Kutcher's funds.
[55] Ms. Hobson goes on in her affidavit to state that Mr. Prest informed her that there was a legitimate commercial transaction governed by a written contract to which neither Mr. Kutcher nor himself was a party. The parties were companies. This contract was predicated upon the payment of certain funds in exchange for shares in a company. Those shares could have only been issued to Mr. Kutcher's company upon successful application for regulatory approval to hold the shares. According to Ms. Hobson, the evidence is that the regulators did not approve this. She exhibits a letter from Mr. James Simpson in order to substantiate this.
[60] It was stated in one of the opinions that, in the event that there was no regulatory approval, the funds were to have been returned to Mr. Kutcher's company from PIAN's "lawyer's trust account to which it was transferred by BMO." It seems to me to be clear that, whether the funds belonged to Mr. Kutcher or his company and whether he or his company was a party to the agreement, the fundamental argument by the Director of Public Prosecutions is that the fundsought to have remained in the escrow account until such time as regulatory approval was granted. Whilst there seems to be some divergence of views expressed in the 4 legal opinions on that issue I am of the view that it is essentially a matter for trial as to venture into such an interpretation in judicial review would not be appropriate; but it would nonetheless be necessary in order to draw the inferences which Mr. Prest would have the court draw at this stage in the process.
The State would be entitled to enlist the support and services of Interpol to issue an international arrest warrant if Prest fails to surrender and submit to the criminal process. Prest was represented by Mr. Peter Foster QC and Ms. Jackie Hunkins-Taylor and the DPP was represented by Anand Ramlogan SC and Ms. Sherry-Ann Liburd Charles.
Director of Public Prosecutions (Ag.)
October 9th, 2022
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